Jagdish Borah vs Central Bureau Of Investigation on 7 September, 2016

[Cites 11, Cited by 0]

Gauhati High Court

Jagdish Borah vs Central Bureau Of Investigation on 7 September, 2016

Bench: M. R. Pathak

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":m "'ikiii ﬁh't'fﬁﬁ'i'l'fﬁﬁh
{THE HIGH cou m OF ASSAMLNAGALANDMZ-DRAM & ARUNACHAL PRADESH},

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PR¥NCEPAL SEAT AT GUWAHATﬁ

CREMENAQL PET'ETSON No. 1553 Off 2.016

Shri Jagzadi'sh Sarah
R/O Fiat No. A"1?, Abirkun}? Apartment, 6"" Fioor,
Hatigarh' Chariaii, Mother Teresa Rgad, .Guwahatib

781021, Assam.
......... . AggusedfPetitioner
- VERSUS ~
Canttai Bureau of Invesiigation
.... ., gaggséte Party

Advocates for the Petitioner:-- Mr. K. Agarwai. Sr. AdVUcate
Mr. Rey,
Mr. Hasan,
Mr, A. Hasan,
Mrs. S. Kaka-ti,
Mr. S. Borthakur, Advocates

Advdcate for tD§_D_.E_._ :~ Mr; RN. 'Chcudhury
SE, CB'I
BEFQRE

HON'BLE MR. JUSTICE M. R. PﬁTHAK

Date of Hearing : 29.07.2016
Date of Judgment .8; Urder : 07.09.2016-
,. 3/
$6
Crt. Pet. No. SJBfZOlb Paga' . of :6

JUDGMENT 8t ORDER (CAV)

Heard Mr. Kama! Agerwei, learned Senior Cnunsei, assisted by Mr.
Jyotirmoy Roy; Seamed munsel 'er the accused petitioner and Mr. RN.
Cheedhury, learned Standing cetinsei (281., "for the sole Opposite Party.

2. The facts of the case is that. the then Deveiopment Commissioner
{Handicrafts}, Government. of India, New Deihi, being responsibie fer
Cie'reio'pment ofhentiicrefcs for the entire country, whiie visiting Guwehati feit the
need for a handicraft museum tinder the Governmentg'P-uhiic Setter {Unit in the
Northeast for showcasing its rich heritage and handicrafts & textiles considering;
that the people of Nertheast are cuituraii'y and traditienaiiy linked and accortiingiy
suggested the present petitioner for the same. in View of that the acchsed
petitioner the then managing Director of Ncrth Eastern. Handicrafts and
Hendioor'n Beveio'pment Corporation Limited: (NEHHDCL, in short} in the ﬁrst part
at" the year 28.09 submitted an estimated fund enitrunting to Rs. SCLUCLOOOI~
proposing to: set up the Handicrafts Museum at in the 'We Hnujse' at" NEHHDct,
at Pub-Berra, Georg, Gore'huiz, GuWahati to showcase the rich handicrafts and
textiles of the North Eastern Region. Thereafter, the Central Government in the
Handicrahs Department sanctioned grants--Maid. cot Rs. S0,00,:U{30X-- tn the
NEHHDCL, Guwa-hati and reieased 5.0% 01' the said 50,0G,000£~~ being Rs.
ZSIGG,OOO/- towards paymentas ﬁrst insteliment as n'o'n~rei:urring gra'rit--in--aid to
the said corporation for setting up the said Handicrafts Museum.

3. It is .aiieged that the accused persons inciuding the netitioner herein
entered into a criminai conspiracy jointiy er Severeiy and the accused persons in
cannivance with the concerned personnei of NEHHDCL by frauduient means,
using fai'ged documents and the accused ofﬁcials of the said corporatien by
issuing iimited tenders aii'otted the wOrk reiatirig to designing of the coneerheti
Hantiitrafts Museum and aisn the civii repairing works. to one Of the attus'e

per-sen Caused a totai £055 to the Government at India tcs the tune of Rs.

Cri. No. 5532016 Page '2 of 1'6

6,74,648/'- and corresponding Wron'gfui gain to the accused persons which

- disciosescommission of mgnizahie offences UHdEi" Sections 12OBfL'iZti'fr1i68/4H oi

IPC read with Sections 13' (.1)(d)_/13{2) of the Prevention of Corruption Act,
1988.
against the accused persons including the petitioner and after investigation of the
matter, the Opposite Party CBI on 20.02.2013 submitted the Final Report under
Section 173 Cr.P.C, before the Special 3udge, CBI, Assam, Guwahati against the

Accordingiy, a criminai Case being RCOU'QOIBAOOQB was registered

petitioner, and two others. The said case was registered & numbered as Special
case No. 4X2814 (CB: -\rs- Jagadish Bore & others) before the Special Judge,
(:81, Assam, Additional ﬂourt No. l, Guwahati, charge sheet of the case
submitted by the C81 reveais that the petitioner being the Managing iDireetOr of
the NEHHDCL is. a puhiic servant and misused his ofﬁciai power for his own
beneﬁt, misappropriate the money that was sanctioned by the Ministry of
Handioom, Government of India, towards construction of the Handloom Museum
at Guwahati under grants--in--aid received from the Development Commissioner
(Handloom), Government of India. The learned Speciai Judge, C81, Assam,
Additional Court No. 1, Guwahati, after hearing both the prosecution as Wei! as
the defence, by his ordeir dated 27i05.2016 passed in said Specie: No,
4/2014 rejected the prayer of the accused petitioner to discharge him from the
charges ieveied against him in the said charge sheet dated 20322013 submitted
by the CBI and. came to :a ﬁnding that the charges wouid be framed against. the
accused persons including the petitioner and ﬁxed the case for framing Charge

against ail the accused persons.

4. Being aggrieved with the said rejection of discharging the petitioner from
the charges leveled against him under Sections 1208f420j468/4ﬂ EPC read with
Sections 13(1)(d)[13{2) of the PC Act 1988, the petitioner has preferred this
petition under Section 482 Cr.P.C. read with Section 39'? Cr.P._C. and Article 22?
of the Constitution of India to set, aside and quash the order dated 21.05.3016
passed in said Special Case No. 41.2914 by Special Judge, €81, Assam, Additionai
Court No. it, GuWahati and to discharge him from aii charges in said Speciai .Case
No. 4/2014.

Crl. Pet. No. 553i'20'16 Page 3 of 16

5. Amongst others the accuser! petitiOner have submitted that the Special
Budge has failed to appreciate the evidence. on record in its proper perspective
and arrived at an erroneous finding Vida order dated 215.2016 which resulted in
serious miscarriage oi" justice since the Court concerned failed to note the serious
contradictioos and discrepancies in the statement of Witnesses recorded under
Section: 161 Cr.P.C. it is urged by the petitioner that while filing the-Eiéiharge sheet
in the ease, the CBI faiieti to appreciate that the work of construction of
Handicraft Museum was of public interest which was completed to the
satisfaction or'all concerned and the prosecution failed to produce any document
or evidence whieh holds that CPWD manuai is appiicabie to NEHHDC Ltd,
GuWah'ati for giving contract to cam! out its preje'ct and that the accused
petitioner has ﬂoated the norms prescribed in the CPWD manual in allotting the
designed work of said museum to one M/S. ital»: Art Gallery, New Delhi of which
the accused No. 1 of the case! Smt. Kakoii Barkakati, is the proprietor. It is
stated by the petitioner that NEHHDC Ltd. is a public limited company under the
Companies Act, 1956 and the Special Judge mistakenly held that said NEHHDC
Ltd. is a department of Government and aiso came to a wrong conclusion that it
in aiiotting any] construction work by the. said corporation, the provisions of
CPWD manual is mandatory; According to the petitioner there is no evidence or
finding that any ioss has been caused to the said Connor-anon or that the accused
petitioner has obtained any pecuniary gain for himself or others by dishonest
intention, corruption, illegal process: or by abuse of his position being a public
servant and therefore, in absence of any such materiai, no charge under the
Previantion of Corruption Act, .1988 specifically under Sections 13mm.) &13(2) or
the said 1988 Act could be framed against him. The petitioner also contended
that as the charge sheet does not reveal any criminal intent an the part of the
amused petitioner, he cannot be charged under Criminai offences. The petitioner '
stated that he served as Managing Director of said NEi-ll-lDC Ltd. with effect from
01.05.2008 and iett the said job. on 25.01.2613 (accused petitioner retired on
superannuation on 38.81.2013) and the investigation conducted by the CB! was
done in his- absence after his retirement from said corporation and therefore. it is

Cri. Pet. No, 5523;2016 Page not .15

urged by him that the charge sheet filed by the C81 in the case is perverse as the
C81. iaiied to appreciate the invelvarnent 0f the accused petitioner and teak a
wrong View that he was inveiveci in aii stages of the proceeding, It is funher
stated that the petitioner being the Managing Director, it was not pessibie on his
part to verify the credentials ef the parties and 35 because he was the Managing
Director he was baund to depend on his ofﬁcers who are competent enough to
take decisions, more so when the Committee has been constituted to verify the
matters involving the case regarding issuance of contract to the accused Not 1;.
but the CBI faiied' to appreciate this aspect at the matter and the Speciai judge
Without considering aii these passed the impugned era's-r dated 272052016. itis
Stated by the petitioner that the contract in question was given to the iowest
bidder, the accused us. 1 and therefore, the question of invoivement' ef the
accused petitioner regarding misappropriation of fund in coii-usion with the
accused persons that was sanctioned by the Centrai Governmentdoes not arise.-
According to the petitioner, no rule, has been framed by the NEHHDC i.th
Guwa'hati for issuanCe of any tender by it and the aiiotment sf tender to accused
No. 1 Was a 'celiective decision of the Tender Committee NEHHDC Ltd, which eniy
needed approvai of the accused izietiticinerF he being the Managing Directh of the
Corporatien.

6-. The petitioner submitted that under the provisions er Section 226 of the
Cr..i3.C., itis the bountien: duty of the prosecution to piece aii evidence before the
Court by which Charge has te estabiished and it is the duty at the (hurt to
consider judiciousiy whether the materiai a'vaiiahie on record warrants framing er
the chargets} and. that the Court shouici not biindi'y accept the decisien of the
prosecution directing the accused to fate the triai and that in the present case,
the iearned Speciai Judge failed t0 appreciate the same inaspite of there being no
evidence on record to show that the accused petitioner has committed the
offence as aiieged' it is submitted by the accused petitioner that as there is no
sufﬁcient ground to preceed against him, the iearned Speciai judge iaiied to
appreciate the facts of the case in apprepriate manner and iii-spite "of

rosecuticin's failure to iaCe relevant evidence and record in the case, therefore,
9 _

Cri. Pet. Ne. 553/2016 Page 5 cf 16

the impugned order dated 21052016 passed by the learned special Judge C81,
Assam, Additional Court No1, Guwaheti in Speciai Case No. 4/2314 is iiahie to be
set aside and quashed.

3?. Learned Sr. COunsel Mr. K. Agarwel for the petitierier placed reliance on
the judgments reported in {1972:} 4 SCC J37 ("Amer Netti ifs: State of Han/em);
(19??) 4 3C6 551 {Medﬁu chm/e Vs, State ofMabarastra); (1998) 5 SEC 749
{Pepsi'Feods Lei Vs; SpeaerjuotciaiMagistrate/tr (€998,1ZSCC 598 and {215700) 2
SEC 636 (G. Sager Surf ks. State of'UZ'P.) With regard to quashing of criminal
proceeding under Section 482 Cr.P.C,, at the stage of framing charge, when no
offence has been made Out against the accused person and stiil why such
accused persons require to undergo the agony of the criminal trial and thait'the
accused persons are not deterred from approaching the court under- Section 482
Chili; for quashihg of the criminal proceeding even at an earlier point of time

when the Magistrate takes cognizance of the offer-ice.

8.
the judgments; it is seen that the Hen'bie Apex Genet have Clearly spelt out that

Peruseci the judgments cited by the teamed Senior counsel and from all

High Court while qua'shing the proceeding under Section 4-82 Cr.P.C. even after
filing of charge sheet should exercise the said power sparingly in the interest of
justice where the Court comes to a clear finding that continuation of such
criminai proceeding against an. accused person would be an abuse of the .proceSS
of Court and in situations to prevent. such ~abu5e and tie secure the ends 0?

justice.

9' In the Case of State ochStK ~Vs~ Earnest? Chanda; reperted in {1529?} 2
SCC 90, the Hon'bie Apex Court have h'eid that --

"The charge-sheet censtitutes prima, facie evidence constituting the offence for
proceeding further in the matter. Necessarily, therefore, the Ceurt has to look. into
the relevant law and the allegations made in the charge-sheet and then conSicler
whether any offence has been committed to frame charges for trial before
'clisCharging the aCCusec'i. Since the High Cour-t has not done that, we think it proper
that the High court should reconsider the matter and: dispose of it in a'ccerdarice with
law."

Cri. Pet. No. 5»53j2016 Page 6 et 16

1.0. A three Judges Bench of the Hon'bie Supreme Court in. the case of State
of Karnataka --V5- :1. Mun/"simmy, repOited- in (1977) 2 so: 699 regarding High
Court's inherent power under Section 482 Cr.P.C. to quash a proceeding pending

before. the sessions Judge. on the ground of insufﬁciency of evidence have heici
that .~

"The order framing a charge affects a person's liberty su ostentia-iiy and therefore it is
the duty of the court to Consider judicia'isiy whether the materiai warrants the framing
of the charge. It cannot blindly accept the decision of the prosecution that the
accuseci be asked to faces tri-ai. It Was heio by'this Court, whiie considering the true
scope of Section 203 of the oid Code that the Magistrate was not bound to accept the
resuit of an enquiry: or investigation and that he must appiy his judiciai mind to the
materiai on which he had to form his judgment. These decisions Show that. for the
purpose of determining whether there is sufficient ground for proceeding against an
accused the court possesses a comparativeiy Wider discretion in the exercise of which
it can determine the question whether the materiai on the record, if unrebutted, is
such on the basis of which a conviction can be said reasonabiy to be .posSibief'

11. In the case of State of Maharashtra ~i/s- Fri/ya Sharon Mariska}; reported
in (11599,?) 4 SCC 393, the Hon'bie Supreme Court in a case under Sections
22?;'228/219 ~Cr.P.C.. regarding order of discharge: or framing of charge against
a-Ccused have heid that «-

"if there is no softitie'ntgrouoti for proceeding agaii'ist, the accused, the
Court: has the undoubted power to sift and weigh the eVidE'nce for the.
i'imited purpose of finding out whether or not a prime 'fecie case against
the accused is made out The mater'iai placed before the Court must
dis-ciose grave suspicion against the accused. Winai'i two VIEWS are equaliy
possible and if the'Court finds that the. materiai proou'ced before it whiie
giving rise to some suspioioo does not give rise to grave SLJSPiCiOiT against
the accused, it wiii be tuliy- within its right to discharge the accused. At
Section 22,? Cr.P.C. stage the Judge cannot act mereiy as a post office or a
mouthpiece of the prosecution, but has to consider the broad: probabiiities
of the case, the total effect of the evidence and the. document's proouc'ed
.before the Court, any basic infirmities appearing in the case and So on."

12. In a matter where offences Were tried by Speciai Judge under the
proiris'ions of Prevention of Corruption Act, the H-on'bie Apex Court in the case of
Union offndie «Ms-- Prafi/fra Kumar Samar; reported in {1979) 3 505' 4, regarding
Speciei Judge's power to pass order of discharge under Section 227 CrPiC. have

Cri, Pet. No. 5532016 Page 1? of 1'6

its

observed that w "the legislatures have amended the Code of Criminat Procedure,
1898 in order to cut out delays and simplify the protedureend that. the amended
pi'O'v'iSlCinS of Section 227'Cr.-P.C. conferred a dual responsibility on the trial Eudge
who is required ﬁrst to examine- the case on the basis of the statement of
witnesses recorded by the poii-ce and the documents ﬁled with a View to ﬁnd out
whether a prima facie case for trial has been made out and, then it such a. case is
made out to proceed to try the some and according to their Lordships' View the
legislature has adopted the said course in order to avoid frivolous prosecutions
and prevent the accused from being tried of an offence on materiais which do
not furnish a reasonable prohabiiity of conviction. In the said case Hon'bie Apex
Court also observed that as the offences alleged to hate been committed by the
respondents tail Within the provisions of the Act, the Special Judge has been

substituted for the Sessions Judge, the procedure or the Sessions Court having been aopiied fully to the trial of such cases, Thus, it is manifest: that the acouseo' has got oniy one opotthunitzii and that too before the Sessions Judge tor showing that no case for trial had been made out This was obviously done to expedite the disposal of the criminal cases. H'en'hle Court also observed that atter the amendment or the Cr.P..C.r , the power of discharge has been entrusted to a senior court, namely, the Sessions Judge who is to conduct the trial himself and who has to decide before commencing the trial as to whether or not charges should be framed in a particular case against the respondents and as the said discretion, is now required to be exercised by a senior and more experienced court So as to exciude any abuse of power, therefore in that view of the matter, it is manifest that the Sessions Judge eXercises his discretion in discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by the High Court or by this Court.

13. so far as pure sessions trials are concerned the Hen'bie Apex Court in the said By interpreting and analysing the provisions of Section 212? of the Gil-RC.

case of Pram/7c? Kumar Samar; (Supra) has held as follows. ---

"?. Section 22? of the Code runs thus:

"it, upon Consideration of the reCord ofthe case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in Ctl. Pet. No. 553,;QO'15 Page 8 of 16' on. Pet. N0. 5531'2016- this behaif, the 3udge considers that there is not sufficient ground for proceeding against the accused, he she-ii discharge the accused and record his reasons for so. doing."

The wcirds "not sufficient ground for proceeding against the accusen" clearly show that the Judge is note mere post office-to frame the charge at the behest of the proSecution, out has to exercise his judicial mind to the facts of the case in order to determine whether a case for triai has been made out by the prosecution In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and baiancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 22?, the judge has merely to sift the evidence in order to find out whether or not there is sufficient grown for proceeding against the accusedi The sufficiency of ground would take within its told the nature of the evidence recorded by the police. or the o'ocuments produced before the court which ex--facie discios'e that there are susnicions circumstances against the accused so asto frame a charge against him.

'8. The scope of Section 22? of the Code was considered by a retent decision or this Court in the case of 5236:? of Erna," tr. Hemesh Simon firepower?" in {197?} 4 SCC 39] where Untwaiia, l, speaking for the Court Observed as foilows:

"Strong SUSPiCiGn against the accusede it the matter remains in the regiori of suépici011, cannot take the place of proof of his guilt atithe coriclusion of the triali But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for orOCeeding against the accused. The presumption of the gniit of the accused whiCh is to bra-drawn at the initial stage is not in the sense of the law governing the triai of'crirninel cases in France where the accosted is presumed to be guilty uniess the Contrary is provoci._ But it is only for the purpose of deciding prime tacie Whether the Court shooio' proceed with the triai or not. It the e'ricience which the Prosecutor proposes to edduce to prove the guilt of'the accused even if fishy- accepted before it is challenged in cross-- e-xaml'nation or rebutted by the defence existence, it any, cannot Show that the accused Committed the offence, then there will be no sufﬁcient ground For proceeding with the triai."

This Court has thus held that whereas strong suspicion may not role the piece of the proof at the trial stage, yet it may be sufficient for the satisfaction or the Sessions Judge in order to frame a charge against the accused. Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding our whether or not a case of commitment to the Sessions Judge has been made out.

9. In the case of ICE ngfrevan 2/. fit/7i. Abbas ﬁre-shorted in AIR 1.95? 5C 540nm:

Court observed as toliows:

"No doubt-a Magistrate enquiring into a case under Section 289 OCRC; is not to act as a mere Post Office, ano' has to come to a cenoiusion whether the case hetero him is ﬁt for commitment of the accused to the Court of Session."

Page 9 or '16 _1.0_ To the same effect is the tater decision of this Court in the case of Armorial? Des V. State of irVeSt'Bengai ﬁeporz'ed in AIR I970 SC Na] Where Sharp 3.; speaking for the Court ohservad as follows;

"A Magistrate holding an enquiry is. not intended to act, merely .as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there. is sufficient'eviderice for conviction; if thereis no prime fade evidence or'the evidence is totally unworthy of credit, it is his duty to discharge the accused: if there is some evidence on which a comiiction may reasonabiy be based, must cemmit the case."

In the aforesaid case. this Court was considering the scope and ambit oi"

$e'ctiori 209 of the Code of 1898.

COosidering ah the aforesaid authorities the Hoo'ble Apex Court in the said caSe ofprarfurla Kumaﬁ Samar; {Supratiat Para 3.0 have. held as follows:

"10. Thus, on a consideration of the authdrities mentioned above, the following principles emerge:

{I} That the Judge while considering the question of framing the charges under Section 227' of the Code has the undoubted power to sift and weigh theevideoce for the iimited porpo'se of fleeing out whether or not a .prima facie case against the accused has been made out.

{3} Where the materlais pieced before the Court diacioee grave SUSpiCion' against the:

accuseci which has not been properly explained the Court wiil be fuliy justiﬁed in framing a charge and proceeding with the trial.

{3} The test to determine a prima facie case would natixraily'ciepend- upon the Facts of each case and it is difﬁcult to lay down a rule of universal eppiication. By and large however it two views are equaliy possioie and the Judge is satisﬁed that the evidence produced before him whiie giving rise to Some suspicion but not grave suspicion against the accused, he wiil be fully within his right to iflischarge the accused.

(4) That in exercising his jurisdiction under Section 22? of the Code the Judge Which under the present-Code is a senior and experienced court cannot act mereiy as a Post Office or'a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic iofirmitie-s appearing in the case and so OH. This? however doesnot mean that the Judge should make a roving enquiry into the pros and cons of the matter and Weigh the evidence as if he was conducting a trial.

.14. In the case of State of IN. 4/3? 2% Suresh Regan, reported in {201-4} 1] SCC f0? regarding. framing of charge and discharge of accused under Sectioo 227 CriP.C,,- the Horr'bl'e Supreme Court have held that --

"True it is that at the time of consideration of the applications for discharge, the coort' cannot act as a mouthpiece of the prosecution or act. as a post office and may sift evidence in order to find out whether or not the ailegations made are growtdiess' so Cri. Pet. No. 553f20'16- Page 10 of 1.6 (Zr-i. Pet. no; 553jzols

15. -11- as to pass an order of discharge. It is trite that at the stage 'of consideration of an application for diacharge, the court has to proceed with an assumption that the materiais brought on record by" the prosecution are true and evaiuate the said materials and documents with a View to find out whether the facts emerging there from taken at their face vaiue disclose the existence of aii the ingredients constituting the ali'e'ged offence. At this Stage, probative value or the materiais has to be gone into and the court, is not expected to. go deep into the matter and hold that the materials would not warrant a conviction In our opinion, what needs to be considered is whether there is a ground for presuzrriing that the offence has been committed and not whether a ground for cenVicting the accused has been made out. To put it differently, if the court thinks that the accused might-have-committed the offence on the basis Of the materials on record on its. probative value, it can frame the charge; though for conviction, the court has to some to the conclusiOn that the accused has committed the offence. The iaw does not permit a mini trial at this stage." "

The Hon'ble Supreme Cour-t in the case of Sires Ana-char Wodhi'Pan-lsnao' ~i/s-- Dingo Narmada! Chords; reported in (3989) I ECG 715, regarding discharge or framing of charge under Section 227 C-r.P.C. have held that --

"In Fact, Section 22? itself contains enough guideiines as to the scope of enquiry for the purpose of discharging an accuwd. It provides that "the Judge shalt discharge when, considers that there is no sufficient ground for proceeding against the accuse _ The "ground" in the Context is not a ground for conviction, but a ground fer putting the accused on trial. It is in the trial, the guilt or the innocence of the accused villi be determined and not at the time of framing of charge. The court, therefore, need not undertake an 'eiaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects» Ali that the court has to censider is whether the evidentiary materiai on record if generailv accepted, wouid reasonably connect the accused with the crime. No more need be enquired into.

We wish to add a word regarding interference by the High Court against a charge framed by the Sessions Court. Section 227 which confers power to discharge an amused was designed to prevent harassment to an i-rin0cent person by the arduous trial or the ordeal of prosecution, How that intention is to be achieved is reasonany clear in the section itself. The power has been entrusted to the Sessions Judge who brings to bear his'knowiedge and experience in criminal triais. Besides, he has the assistance of counsel forthe accused and Public Proseoitor. He: is required to hear both sides before framing any charge against the accused. or for discharging him. if the Sessions Judge after hearing the parties frames a charge, and also makes an order in support thereof; the law. must showed to take its oWn course. Self- rest'raint on the part ofthe High Court Shauid be the rule unless there is a giaring injustice which stares the court in the face. The opinion on any matter may differ depending upon the person who views it. There may he as many opinions on a particular matter as there are Courts but it is no ground for the High Court to interdict the triai. it wouid' be better for the High Court to allow the trial to proceed."

Page 1.1 or is -32- 3.6. Again in the case of Hem Chane -i/'s~ State 91" .lharkfienaf. reported in {.2008} 5 SCC' J13, regatdiiig jurisdiction of Court at the stage of framing of charge under Sections 227, 32.28, 239 8: 24,0 CERC, the Hon'b'ie ApexCourt' have heiid that '--

"It is beyond any doubt or disoute that at the stage of framing of charger the Court Wiil not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conciusioe as to Whether the prosecution was: abie to bring.

home the charge against the accused or not Would arise eniy after aii the evidence is brought on record at the that It is. one thing to say that on the basis of the admitted. documents, the apoeiiant was in a position to show that the charges 'couid not have been framed against him, but it'zis anodie-r thing to say that for the said purpose he couid rely"

upon some documents whereupon the prosetution wo~uid not reiy.

The court at the stage of framing charge exercises a iimited jurisdiction. It wouid oniy have to see as to whether a prime fade case has been made out. Whether a. case of ptobabie conviction for tonnmissio'n of an offence has been made outon the basis of the materiais found'dur'ing investigation shouid he the concern of the Com. It, at that stage, would not delve deep into the matter'tor the purpose of appreciatiori of evidence. It wouid ordinarily not Consider as to whether the accueed wouid be abie to. esta'biisii his defence, if any;"' 1?. Coming back to the ease in hand, it is seen that the 'Annexures appended to the petition, dearly renects that the North Eastern Handicrafts and Handiooms Deveiogpmeznt Corporation Limited, Guwahati is a Government of India Enterprise and therefore the petitioner whiie sewing as the Managing Qvirectot of said NEHHDC. Limited was a Government Servant. Further, from the Charge sheet ﬂied by the CB: invoived in this case reﬂects that though the Tender Committee- pirepated a comparative statement on 16.02.2610 of the quotations reeeived from the three firms/parties, the NEHHD'C Limited fi'outed regarding the notice inviting tender dated 12.61.2010 for undertaking the design, concept develeprnent, supervision and execution of the Handicrafts Md'setim at Pub Boragaonf Gorchuk, Guwahati at an estimated vaiue of Rs. i.5,00,000,'- and the proceedings drawn in that regard recommending the award of wotk to one We. Aak Art .Gailiery, New Deihi being the iowest bidder at the quoted rate of Rs. 14,99,280,'-- given to the a-cCused No, 1 his; Kakoii Baritakati pmprietor of the said ﬁrm after getting aoeroval from the accused petitioner from accuse CH. Pet. No. 553f2016 Page. 12 of 16 petitioner, the then Managing Director of sairi NE'HHDC Ltd. Was just a mere formality since the accused petitioner atreaciy decided that the tender for designing the said museum at Gotchuh, 'Guwahati wouid be aliottec! to the said accused No. 1 and the investigation has establish-ed that on 12.31.2010, the day on which the NIT for the moseum work was to be floated, said accused No. 1 proprietor of We Ask,- Art gailery New Delhi Visited the museum at Gorchuk aiong with the accused petitioner and one Mr. Sen and on the Said date itseif said R. Sen preparedva report with the assistance of said accused No. 1, Ms. Kakoii Barkakati which was in the handwriting of saidivir. R. Sen and accused No.

3. Ms. Kakoli Barka'kati. Further on the same day Le. 12.01.2010 itsle the said accused No, ,1 prepared an estimate Wherein the vatue of Rs. 15,00,000f-- was indicated and the said estimate report of accused No. I Was duly proved by said Sri R. Sen. Moreover, as proved by CFSL report dated 99.04.2014, all the three quotations Le. in favour of MS. Ask. Art Gallery, New Delhi, of the aforesaid accused No.1, MKS. Indrani Merchandise of the accused No. '2 Riten Barkakotii, brother of accused No. 1 and one MKS. DD Agencies, a nonexistent firm, which couici not be traced out at the given address, were submitted by the said accused No. 1 Ms. Kakoii Barkakoti as evidence-from the fact that the envelopes or'aié the three ﬁrms was written by the. said accused No. 1.. The charge sheet also reveals that the accused No. 2 Sri Riten Barkakti: received; three cheques in. tax/oar or VHS. AakArt Gaiiery of ascu'sed No. 1 whereas the said accused No. 2 was oniy' authorized to receive oniy' one ChEQUE of Rs. 917,843,!-- towarcis security money, that was never :depostted with the NEHH'DC Ltd. by said WS. Aak Art-Gailery' of accused No. 1 at any point of time. The record of the case aiso reveals that the. accused No. 2 Riten Barkaltoti accepted the terms at conditions of Work order issued in favour or hissister Ms. Kakoii Barkaitoti, accused No. 1's farm M/s. Ask Art gaiiery, New Delhi and the said accused No, 2, who is the signatory in the Work order in favour of said WS. Ask an: Galiery, in conni'vance with the accused petitioner obtained the work. order and further, the record reveals that the accused petitioner abusing his ofﬁciai position as a mom: servant being the Managing Director of said NE'HHDC Ltd. 'conSpired with accused No. '1 and Cri. Pet. No. 553/2016 Page 13 or 16 -34- accused. No. 2 dishonestly & frauduie'ntiy issued iimited tender in favour of accused No; 1 Ms, Kakoii Bar-taken instead of issuing the open tender knowing fuily we'll that an ooeh tender is required to be invited for a work of above Past S,-00,000/'-, which is a dear cut case on the part of public servant to show undue favour to the private persons unlawfuiiy by ﬂouting e'stabiished norms, The charge sheet. also reveals that some documents were sent for expert opinion of the forensic laboratories and others, which wee stilt awaited to he filed as and when received from the CSFL, Guwahati.

18. Special Judge, CBI, Assam, Additionai Court No.1, Guwahati in Special Case No. 4f2f314, it is seen that learned Judge came to a finding that NEHHD'C Ltd, being a From the impugned order dated 21.05.2016 passed; by the learned Government of" India undertaking is a Central Government institution and therefore. the provisions of CPWD manuai is appiicahie and therefore, the Ofﬁcers of said NEHHDC- Ltd. are required to foliow the protedure' of Calling tender as per Ci'WE} work manual for its construction work. The Specie} Judge also considered the proviSions of General Financial Ruies incorporating Compendium Rules of Advances and came to the ﬁnding that the accused petitioner being the Managing Director of said NEHHDC Ltd. did not foil-ow the procedure oi? the Rule 130, 132 and Sub--Rule of General Financial Rules and he allotted the work by vi'oiating the provisions of CPWD' rules and Generai Financial Rules and rejected the submission of the accused petitioner that CPWD rules is. not applicable to the case in hands. Moreover, the Special Judge Considering the materiais on record came to a ﬁnding that the accused persons 'inciuding the petitioner herein are invoived in the misappropriation of money in collusion with each other and that, there are materials against the accused persons. Considering aii these the Speciai Judge, by the impugned order dated 21.05.2016 did not ﬁnd any reason to diSCh-arge the accused persons at the stage of passing order on the framing of Charge and rejected the prayer 'of the accused persons for discharging them in the-said in Speciai Case No. 4/2014.

'Ci'l. Pet. No, 553/2015 Page 14 of 16

19,.

that the Court concerned has to be satisfied about the prime facie existence of Considering the. above decisions of the Horrible Apex Court it can be seen reievant ingredients constituting the offence and if the evidence discloses jprim'a facie commission of alleged Offence, the said court is required to frame charge against the accused. This COurt in the case of 5m: 511:5 5?er & Answer ~i/5-- 5/7' Sin/am Sing/'7 & Others. reported in 1994 CW. Lam/Jayme! 26 have held that at the stage of framing of charge under Section 2277228 C'i'PCV it is to be seen whether a prima facie case regarding the commission of certain offence is made out or not and the question whether the charges has been proved er not can be determined only after evidence is recorded in the case. At 'the'time of framing of charge, the Court does not see any independent corroboration to suffice the evidence for conviction. Further, if there is ground for presuming that the accused has committed the offence, a court can justifiably says that a prima facie case exists against him and framing of charge is justified. Law is well settied that at the stage of framing of Charge under Section 22:1,! 228 Cr*.P.C, the Court would net induige in meticulous evidence but it is required t0 evaluate the materiai and document on record with a View to ﬁnding of the fact emerging therefrom takeh at the face value eiscieses the existence. of all the ingredients .censtituting the aileged offence.

20. Considering the above, it is found that the Speciai Judge, CBE, Assam, Ad-d'itienal Court No. 1, euwahati by his impugned decision dated 27.05.2016 passed in Special Case No' 4/2014 While rejecting to discharge the accused persons inciuciihg the petitioner from the said Special Case at the stage of framing of charge in the said case, being satisﬁed about the prima fade existence of matetiais against the accused persons came to the conclusion that there is reason to oroceeci With the case against the accused persons inciuding the petitioner by fuil trlai tcx ascertain the tact-of their invoiVeme'nt.

21. But at the same time it is found that the Speciai Eudge in his said Order dated 27.05.2016 did not specify about the offends so cans-«ituteci with regard to Crl. Pet. Nor 553/2016 Page 15 Of 216 _ which the Court found prima facie material pertaining to the commission of such offence by the accused persons including the petitioner.

22. As the impugned Order dated 27.65.2016 did not Stipulate and spell out the offence for which the Special Court found prima facie materials against the athsecl persons, inciuciing the petitiener, therefore; the Said order dated 21052016 passed by Special Judge, CBE, Assam, Additional Court No. 1, Guwahati passed in Special Case No. 4,12014 being bad in law is hereby Set aside and quashed to that extent, with the direction that the Special Judge concerned shall pass an approor'iate order specifying the offences, with {regard to materials avaiiatile against the .atcused persons- en the basis of which he came. to the condosion that there is ream to proceed with the case: against those accused persons including the petitioner by full trial.

23. Accordinghl, this criminai petition is partly aiiowed. teamed Specie? Judge, CBI, Assam, Additional Court No.1, Guwahati shall pass the order as directed above, at an eariy date, preferabiy Within a period of 50 (sixty) days from the date of receipt of'this order.

24. Registry Shali furnish a cam: of this order to the learned Special Judge, C281, Assam: Additional Court No.1; Guéwehati immediately for necessary compliance. N0 order as to cost.

Mite?"

f JuDGE Mkk Cri. Pet! No. 55312016 Page 16 hi" 16

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