Gauhati High Court
Md. Abdul Quddus vs The State Of Assam And Ors on 10 December, 2021
Page No.# 1/23
GAHC010107092010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5050/2010
MD. ABDUL QUDDUS
S/O LT. FOZAR ALI, R/O DAKSHINGAON, KAHILIPARA, GHY-19, DISET.
KAMRUP M, ASSAM.
VERSUS
THE STATE OF ASSAM AND ORS
REP. BY THE COMMISSIONER and SECY, HOME DEPTT., DISPUR, GHY-6,
ASSAM.
2:THE STATE POLICE ACCOUNTABILITY COMMISSION
ASSAM
REP. BY ITS CHAIRMAN
HOUSEFED COMPLEX
DISPUR
GHY-6
3:ROHINI KR. BANIA
CHIEF INVESTIGATOR
STATE POLICE ACCOUNTABILITY COMMSSION
THROUGH THE SECRETARY. THE STATE POLICE ACCOUNTABILITY
COMMISSION
HOUSEFED COMPLEX
DISPUR
GUWAHATI-6
4:THE DIRECTOR GENERAL OF POLICE
ASSAM HAVING ITS OFFICE AT ASSAM POLICE HEADQUARTERS
ULUBARI
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GUWAHATI-
Advocate for the Petitioner : MR.N DUTTA
Advocate for the Respondent : GA, ASSAM
BEFORE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY For the petitioner : Mr. G. Z. Ahmed.
Advocate.
For the Respondents : Mr. P. P. Dutta.
Advocate.
Date of Hearing : 18.11.2021
Date of Judgement : 10.12.2021
JUDGMENT & ORDER (CAV)
Heard Mr. G. Z. Ahmed, the learned counsel for the petitioner. Also heard Mr. P. P. Dutta, representing the State Police Accountability Commission, Assam.
2. The petitioner is aggrieved by the two orders of the learned State Police Accountability Commission (hereinafter referred to as the Commission) i.e. orders dated 17.05.2010 (Annexure-23 to the writ petition) and dated 12.07.2010 (Annexure-25) passed in SPAC Case No. 52/2008.
3. By the said order dated 17.05.2010, the learned Commission has taken a view that the higher authority in police department should take up an appropriate measure for conducting criminal prosecution under the Prevention Page No.# 3/23 of Corruption Act, 1988 (hereinafter referred to as "the P.C. Act1988) against the petitioner. The Commission also, by way of the said order expressed its view that it would be appropriate to ensure that Departmental proceeding be initiated against the petitioner by the Director General of Police. However, the Commissioner was pleased to await for departmental view from the Director General of Police and any additional or new facts within three weeks from the order dtd.17.05.2010, before finalizing of its own order.
4. Subsequently vide order dated 12.07.2010, the learned Commission was pleased to direct the Director General of Police to cause lodging of FIR treating the complaint as FIR, received by the Commission, on the basis of which the aforesaid SPAC case No.52/2008 was registered. The learned Commission was also pleased to direct the Higher Authority to initiate appropriate steps for conducting departmental proceeding against the petitioner as per law. Thus the learned Commission declined to review the order dated 17.05.2010.
5. The fact of case leading to filling of this writ petition are as under:-
i. That on 08.09.2008, a complaint was lodged against the petitioner before State Police Accountability Commission, Guwahati by 10 (ten) members of the residence of Ligiripukhuri, Sivasagar lead by one Md. Ikram Hussain. The basic allegation leveled in the aforesaid complaint, inter alia, was that the petitioner, while serving as Commandant 1 st Assam Police Battalion had removed numerous valuable trees from the premises of the 1 st Assam Police Battalion, Head office and had it sawn at a local mill and sent the same for the purpose of construction of his house at Moirabari, in the District of Morigaon. Another allegation leveled in that said complaint against the petitioner was that as the said illegal action of the petitioner was published in newspaper, the petitioner on suspicion that one constable namely Lakhyadhar Baruah was instrumental in Page No.# 4/23 publishing such news, tortured said Lakhyadhar Baruah, searched his house without any sanction and authority under law, threatened the member of public to have dire consequence etc.etc..
ii. Subsequent to the said complaint, the learned Commission vide order dated 10.09.2008, was pleased to issue notice to the petitioner asking him to present himself before the Commission to explain his conduct as alleged in the complaint. According to the petitioner, though the said notice was issued by the Secretary of Commission dated 14.11.2008 discloses that a copy of the said complaint was an enclosure of the said notice, but such copy of the complaint was not part of the notice that he had received. In that view of the matter, on 17.11.2008, the petitioner requested to the Secretary of the Commission to supply a copy of the complaint to him to prepare his defense.
iii. It is also the contention of the petitioner that after receipt of the complaint, he could learn that the entire complaint is bogus and has been initiated at the behest of the some anti-social elements and accordingly, he, vide his communication dated 21.11.2008 addressed to the President/Secretary of Old Maszid Committee, Ligiripukhuri, Nazira, sought for clarification of the status of complaint against him. Pursuant to such request, though no immediate reply was forthcoming from the said President/ Secretary but one of the signatories of the complaint namely Nayim Toni Rehman submitted a letter dated 23.11.2008 addressed to the commandant, 1 st Assam Police Battalion (the petitioner) intimating that though the name of one Nayim Toni Rehman has been shown as signatory of the complainant but he has not signed such complaint and his name has bee included without his knowledge. Thereafter, vide communication dated 24.11.2008, issued under the signature of the President of the Ligiri Pukhuri Old Maszid Committee addressed to the petitioner it was intimated that Maszid Committee is not aware of any complaint as mentioned in the aforesaid communication of the petitioner.
iv. Thereafter, on 24.11.2008 the petitioner herein submitted his reply inter alia Page No.# 5/23 contending the followings and also annexing certain documents:
(a) Three persons amongst the complainant are persons with fraudulent Character and also the Constable Lakhyadhar Baruah, who was under
suspension. The other persons namely Md. Intiaz Ahmed, Md. Ikram Hussain all are accused, charge sheeted in different cases by police. The accused Md. Intiaz Ahmed was recently arrested in connection with Golaghat P.S. under S.420 IPC etc.
(b) Regarding the timber, it was his stand that he purchased six pieces of timber beam on 11.06.2008 from one S. N. Timber stores Nazira for his own use and brought the same to his resident. He also submitted a Cash Memo in this regard.
(c) Regarding search of the house of Constable Lakhyadhar Baruah, it was the defense of the petitioner that the said Constable Lakhyadhar Baruah had stolen some official documents and kept in his residence and accordingly, the petitioner went to the residence of said Lakhyadhar Baruah and according to him, he had peacefully opened the door and recovered the stolen documents from the rented house of Constable Lakhyadhar Baruah.
(d) It is also the case of the petitioner that, allegation against him has been made at the behest of some anti social elements and he had also given explanation for the probable reason of the some of the villagers who are dissatisfied with the petitioner.
(e) It was also his defense that the main complainant Md. Ikram Hussain did not sign the affidavit against him, while filing the complaint before the Commission. The signature was fake.
(f) Accordingly he prayed for quashing the SPAC Case No. 52/2008.
v. Subsequent to this, an enquiry was conducted by the IGP (TAP), through Page No.# 6/23 one Sri A. K. Chaharia, IPS then Dy. I.G.P. (TAP) Dergaon, Assam, one the basis of an order passed by the Commission dated24.12.2008. The said Officer, after enquiry, submitted a report on 13.02.2009, in substance, exonerating the petitioner from the first allegation but with adverse finding in respect of the second allegation. Some of the important findings relevent for the present lis are as under:
(a) That due to heavy storm on 10.05.2008, four unclassified trees fell down and uprooted near the Battalion Police Guest House of the 1 st Assam Police Battalion.
(b) Such area was cleared by the C.O. and the main trunks and branches were sold to the recruits constable at cost of Rs. 4,000/-.
(c) A matured Eucalyptus tree fell at the hospital compound. Accordingly, the C.O. directed for uprooting the base and he has purchased it at the cost of Rs.200/- for his personal use.
(d) The petitioner purchased 47.82 Cft 'A' Class timber at cost of Rs.
20,084.00/- and swan the same in a local saw mill at Ligiripukhuri and kept the same in his Government residence for personal use.
(e) According to the Enquiry Officer, the local people have misunderstood and managed to publish the news in News paper.
(f) There are findings against Constable Lakhyadhar Baruah and the Enquiry Officer was of the view that due to the strong personality and principle of the petitioner and for taking certain strict and disciplined action, the Constable Lakhyadhar Baruah as well as the local youths were unhappy with the same.
(g) Regarding the house search, it was the finding of the Enquiry Officer that there were hot exchange of words between the police and the villagers while breaking the lock of the house of Constable Lakhyadhar Page No.# 7/23 Baruah. It was also finding of the Enquiry Officer that the petitioner and his battalion personal did not have power to have search, as the house falls, beyond their jurisdiction and it is under local police.
vi. Thereafter, the learned Commission not being satisfied with such report being perfunctory, vide order dated 13.02.2009, asked the Commission's Chief Investigator, namely, one Sri R. K. Bania, DIGP (Retired), to enquire into the complaint. The said Chief Investigator submitted his report on 04.03.2010. The said report found the following.
(a) The action of the petitioner and his officer/men in forcefully opening entry into a house and continuing searches was not at all legal as same was not as per provision of Section 100 (I) of Criminal Procedure Code.
(b) There are some allegation regarding selling of scrap and selling of scrap materials illegally by the petitioner and accordingly it was a finding of the Chief Investigator that there were financial mismanagement and irregularities of the Commandant and accordingly, suggested that action should be taken against the Commandant, his MTI, Hav/Clk, under Prevention of Corruption Act, 1988.
(c) The Investigator was also of the view that the earlier Enquiry Officer ought to have detected such financial irregularities.
(d) The Investigator further opined that the irregularities as has been discussed in the report, deserved to be enquired into and action taken accordingly.
vii. Thereafter on the basis of the said report, the learned Commission was pleased to pass the order dated 17.05.2010, which is impugned in the present proceeding. By way of the said order, the learned Commission came to the following conclusions:
(a) The report submitted by Shri A. K. Chaharia, IPS dated 13.02.2009 is Page No.# 8/23 perfunctory and indifferent in nature.
(b) Under the leadership of the petitioner on 14.08.2008, unleashed a reign of terror in the garb of search in the populated area at the house of constable Lakhyadhar Baruah.
(c) The materials on record also revealed that, Commandant Abdul Kuddus, (petitioner) abusing his official position conducted an auction on July, 2007.
(d) All things considered, the Commission was of the view that authority concerned should take up appropriate measures for conducting criminal prosecution under the P.C. Act, 1988 along with Havildar Clerk, Abdul Mannan.
(e) The Commission also felt that it would be appropriate to ensure that department proceeding against the officer be initiated by DGP.
(f) In view of the said observations, the Commission thought it appropriate to await departmental view and additional/ new facts, if any, within three weeks from passing of the order and before finalization of the same.
viii. Thereafter, the learned Commission, in conformity with the proviso to Section 82 of the Assam Police Act,2007 (hereinafter referred to as the Act'2007), was pleased to seek views of the Department and submission of any additional/new facts within three weeks from that date i.e. 17.05.2010 so as to pass the final order.
ix. Subsequent to this, the Additional Director General of Police, (L&O) conducted an enquiry through the Superintendent of Police, CID, Ulubari, Guwahati, purportedly, to have views or have any new materials facts. Accordingly, the said officer i.e. Superintendent of Police, CID submitted a report dated 07.06.2010 with the following findings:
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(a) The allegation of cutting valuable trees at the said campus for personal use by the petitioner could not be sustained.
(b) The selling of scrap materials was done by inviting sealed tender.
(c) When the highest bidder failed to deposit the tender amount, as per the tender condition, a fresh bid was called for vide auction notice dated 15.09.2007.
(d) The petitioner followed and maintained the general procedure for disposal of scrap and there was no loss of Government revenue.
(e) Also, no substantial materials could be found to charge the petitioner and others under the Prevention of Corruption Act, 1988.
x. Thereafter, the learned Commission vide order dated 12.07.2010 passed the final order holding the following:
a. The authority on receipt of the order dated 17.05.2010, instead of following statutory provisions, sought to conduct supervisory enquiry through a Deputy Superintendent of Police (CID) in a most unlawful fashion.
b. The findings of the Enquiry Officer are improper, perverse and legally unsustainable.
c. The materials submitted by Chief Investigating Officer are sufficient for conducting criminal proceeding against the persons concerned.
d. The Commission did not find any material to review its earlier order dated 17.05.2010.
e. The Director General of Police was directed to cause lodging FIR treating the complaint received by the Commission as FIR.
f. Also to initiate appropriate steps for conducting a departmental proceeding against the officer as per law.
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6. The submissions on behalf of the petitioner:
I. The first point urged by the learned counsel for the petitioner is that the allegation made in the complaint cannot be taken up by the learned Commission in view of the provision of Section 78 of the Assam Police Act.2007, more particularly, in view of the fact that the allegations made in the complaint will not come within the explanation of "Serious misconduct" as envisaged in the said section. The Commission will have the jurisdiction to enquire into a complaint or direction of any action only when the allegation comes within the ambit of explanation (a) to (h) of the Section 78 (1). Therefore, the learned Commission acted beyond its jurisdiction in ordering registration of FIR under Prevention of Corruption Act.
II. The learned counsel also submits that so far relating to the misconduct, learned Commission will have power under sub-section 2 of Section 78 only to monitor any departmental proceeding or to change any Enquiry Officer, if the conditions provided under sub-Section 3 of Section 78 is fulfilled. Therefore, in exercise of said power also, the learned Commission will have no sanction and authority under the law to direct for registration of an FIR under Prevention of Corruption Act.1988.
III. The next point urged by the learned counsel for the petitioner is that there is absolute violation of principles of natural justice and to substantiate such submission, the learned counsel takes recourse to Section 81 of the Assam Police Act, 2007. According to the learned counsel for the petitioner, the learned Commission has not given any opportunity of hearing to the petitioner, not to say any reasonable opportunity, as Page No.# 11/23 provided under Section 81 of the Act. The counsel further contends that a reasonable opportunity will mean allowing the person to produce evidence in his support which, he submits, includes the right to cross examination and adduce his evidence.
IV. In that view of the matter, the counsel submits that when any authority, exercises its jurisdiction, without having none, such order is a nullity and is liable to be set aside. He also contends that the principle of natural justice is basic requirement so far relating to enquiry. According to him, since there are adverse findings against the petitioner in the order of the learned Commission and such findings are based without the petitioner being given any reasonable opportunity of being heard, such order is liable to be interfered with inasmuch as the order impugned has adversely effected his right to reputation and such right has been violated without following due process of law as envisaged under Section 81 of the Police Act. Such orders are not sustainable in the eyes of law being passed in complete disregard of principles of natural justice.
V. The learned counsel for the petitioner concludes his argument in the following manner:-
(a) In absence of any provision in the Police Act, the Commission committed jurisdictional error by directing registration of FIR under P.C. Act. In support of his submission, he relied on the decision of the Hon'ble Apex Court in Punjab State Electricity Board -Vs- Vishwa Caliber Builders Pvt. Ltd reported in (2010) 4 SCC 539 and decision of the Hon'ble Division Bench of this Court in Harinder Kumar Deka -Vs- State of Assam & ors reported in (2009) 2 GLR 263.
(b) As the definition of "serious misconduct" as provided under the Act'2007 uses Page No.# 12/23 the word "means", the definition "serious misconduct" becomes hard and fast definition and no other meaning can be assigned to the expression beyond the Clause (a) to (h) of the Explanation given to the Section 78(1) of the Act. To support of his contention, he relies on the decision of the Hon'ble Apex Court in (1) Punjab Land Development and Reclamation Corporation Ltd, Chandigarh -
Vs- Presiding Officer, Labour Court, Chandigarh & ors reported in (1990) 3 SCC 682, paragraph 72, (2) Feroze Dotivala -Vs- P. M. Wadwani & ors reported in (2003) 1 SCC 433, paragraph 13 and (3) P. Kasilingam & Ors -Vs- P.S.G.College of Technology reported in 1995 supp (2) 348, paragraph 19.
(c) The explanation given in the Section 78(1) has been given to clear up any ambiguity and the Section needs to be read harmoniously and that explanation should not be construed as to widen the ambit of the Section.
(d) It is also his submission that the explanation must be read so as to harmonies and to clear up any ambiguity in the main provision. Therefore, the explanation to the Section should not be used to widen its ambit.
7. Submissions on behalf of the Respondent Commission:
Mr. P.Dutta, the learned counsel for the respondent No.2 makes the following Submissions:
I. So far relating to the question of jurisdiction, in the face of the complaint i.e. forcefully entering into the premises of Lakhyadhar Baruah, seizing his lap top and mobile phone breaking the door open of his rented house, amounts to forceful deprivation of a person of his rightful ownership or possession of property and amounts to detention without due process of law. Therefore, the learned Commission was within its jurisdiction to direct the registration of the FIR. It is further contended that, the Commission is having right to conduct enquiry by virtue of the Page No.# 13/23 Section 78 of the Act'2007. His Further argument is that, since the Commission is vested with the power to start an enquiry on the basis of information from any source as well as Suo Moto , the Commission was right in proceeding on the basis of the information gathered by way the report submitted by its Chief Investigator. According to Mr. Dutta, such power is clearly stipulated in Sub section 1 of Section 78 of the Act'2007.
II. Countering the argument of the learned counsel for the petitioner regarding principle of natural justice, Mr. Dutta submits that the petitioner was given opportunity to file written statement. And accordingly he has submitted the written statement with documents, He deposed before the Commission and he was personally heard also. Therefore, the petitioner can not say that no reasonable opportunity of hearing was given to him inasmuch as the Commission has not held him guilty, rather, FIR was directed to be registered on the basis of the Complaint. And as such, according to Mr. Dutta, no prejudice has been caused to the petitioner.
III. According to Mr. Dutta, if the narrower interpretation is given to the jurisdiction of the Commission, as urged by the counsel for the petitioner, the whole purport of enactment of the Police Act become futile, inasmuch, the Act has been enacted, pursuant to the law laid down by the Hon'ble Apex Court in Prakash Singh & Another -Vs- Union of India reported in (2006) 8 SCC. Page 1. Mr. Dutta, in support of such contention relies on paragraph 12 of the said judgment. The paragraph 12 is reproduced herein below:
"12. The commitment, devotion and accountability of the police has to be Page No.# 14/23 only to the Rule of Law. The supervision and control has to be such that it ensures that the police serves the people without any regard, whatsoever, to the status and position of any person while investigating a crime or taking preventive measures. Its approach has to be service-oriented, its role has to be defined so that in appropriate cases, where on account of acts of omission and commission of police, the Rule of Law becomes a casualty, the guilty Police Officers are brought to book and appropriate action taken without any delay".
IV. The learned counsel for the respondent No. 2 summerises his argument in the following manner:-
(a) The Section 78 does not in any manner defines the power and restrict or limit the power and function of the Commission.
(b) "Serious misconduct" covers any act or omission of a Police Officer that leads to or amounts to any of the eventualities given in Explanation (a) to (h) and the same does not mean that act or omission should be restricted in the said eventualities only.
(c) The "serious misconduct" has to be looked into for the purpose of entertaining the complaint under Section 78(1) of the Act, 2007 inasmuch as the Commission is empowered to initiate an enquiry and can issue necessary direction under Section 82 of the Act.
(d) There is no restriction on the Commission to direct for registration of FIR under any applicable provisions of law, if under enquiry, it comes to a conclusion of, prima facie having committed such offence by the Police officials.
(e) As the petitioner was given a personal hearing on 26.11.2008, when he appeared and submitted his response. There is no provision under the Act to give another opportunity to response to the finding arrived at by the Chief Investigation Officer.
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(f) The Chief Investigation Officer did not conduct any parallel enquiry and was only adding the Commission to adjudicate on the complaint.
(g) Therefore, he submits, this writ petition is liable to be dismissed.
8. Heard the Learned Counsels for the Contesting Parties, perused the materials available on record, including, the record of SPAC case No.52/2008, produced by the Learned Counsel Mr. Dutta, representing the Commission.
9. To decide the first issue regarding power to direct lodging of FIR under P.C. Act'1988, this Court needs to look into the Section 78 of the Assam Police Act, 2007. The Section 78 empowers the Commission to enquire into allegations of "serious misconduct" against police personnel, either suo moto or on a complaint received. The Commission can entertain a complaint, on its own, on a complaint of a victim or any person on his/her behalf, on a complaint of the National or the State Human Rights Commission, complaint by the police, or any other source.
10. In the case in hand the Commission has started the Enquiry on the basis of the complaint dated 08.09.2008. Therefore, on this Count, the Learned Commission was within its competence and jurisdiction to start the Enquiry.
11. While coming to "Serious misconduct", it is being explained in the Act itself. The Act says, for the purpose of chapter VIII of the Act, "Serious Misconduct" means, any act or omission of a police officer which leads to or amounts to,- (a) death in police custody, (b) grievous hurt, as defined in Section 320 of the Indian Penal Code, 1860, (c) molestation, rape or attempt to committing rape, (d) arrest or detention without due process of law, (e) forceful deprivation of a person of his rightful ownership or possession of property, (g) Page No.# 16/23 blackmail or extortion and (h) non registration of First Information Report.
12. Therefore, if any action and/or inaction on the part of a police official leads to any of the aforesaid situation (a) to (h) of the explanation under section 78 of the Act,2007, the Learned Commission can entertain allegation on its own or on the basis of complaint or on the basis of information from any source.
13. It is well settled that when statue say that a word or phrase shall "mean" it cannot be treated to be an inclusive definition, rather such definition is to include under its fold, only those given in the definition and not any other meaning. Thus, when the phrase mean is used to define certain thing, such definition is a hard-and-fast definition and no other meaning can be assigned to such expression. A reading of the explanation given to Section 78(1) (a) to (d) and the Explanation given to Section 78(3), shall clarify that the Legislature, in its wisdom while defining the word "serious misconduct" has assigned, a special meaning to the said word. It has restricted the meaning of the word "serious misconduct" by bringing its fold any Act or Omission of a Public Officer that leads to or amounts to a situation given in explanation (a) to (h) of section 78 of the Act2007.
14. It is a fact that the direction in Prakash Singh (supra) has been issued with an object to achieve commitment, devotion and accountability of the police. The supervision and control has to be such that, it ensures that the police serves the people without any regard, whatsoever, to the status and position of any person while investigating a crime or taking preventive measures. Its approach has to be service oriented, its role has to be defined so that in appropriate cases, where on account of acts of omission and commission of police, the Rule of Law Page No.# 17/23 becomes a casualty, the guilty Police Officers are brought to book and appropriate action taken without any delay.
15. Coming to such conclusion, amongst other, the Apex Court in Prakash Singh (supra) directed to constitute State Security Commission in every State to ensure that the State Government does not exercise unwarranted influence or pressure on the State Police and for laying down the board policy guidelines so that the State Police acts according to the laws of the land and Constitution of the Country.
16. Pursuant to such decision, the Assam State Police Act2007 was enacted by the State Legislature but the Legislature in his wisdom while enacting Chapter-VIII brought into existence the Police Accountability commission and enacted Section of 78 to define the functions of the Commission and the Legislature, in its wisdom decided to have a specific meaning of "serious misconduct". Therefore, this Court, in view of the above findings, cannot expand the meaning given to "serious misconduct" in the Statue.
17. The Sub-Section 2 of Section 78 of the Assam Police Act, 2007 also empowers the Commission to enquire any other case, when the same is referred to the commission by the Government or Director General of Police of the State but commission needs to form an opinion that nature of the case merits such an independent enquiry. Therefore, in a given situation commission is empowered to have an enquiry into other case beyond Section 78(1) but the facts and circumstances of the present case do not come under section 78(2) of the Act,2007, as enquiry was conducted by the commission on the basis of individual complaint not on any reference of the Government or the Director General of Police of the state.
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18. Coming to the facts of the case, the contents of the complaint made before the Commission dated 08.09.2008, basically revolves around the alleged cutting of valuable tree from the campus of the 1 st Assam Police Battalion, by the petitioner and using the same for his own personal purpose. This court is of the view that such allegation, shall not come within the meaning of "serious misconduct" as explained in Explanation (a) to (h). Therefore, the Commission could not have taken cognizance of such allegations and could not have directed for an enquiry.
19. So far relating to the second allegation made in the complaint dated 08.09.2008 regarding the action of the writ petitioner i.e. seizure of lap top, mobile phone of Constable, Sri Lakhyadhar Baruah illegally and that, without any authority under law, the petitioner forcefully entered into the residence of the constable Lakhyadhar Baruah and broke open the lock, are prima facie in violation of procedure prescribed by law and in violation of rule of law. Therefore, the same will come under the purview of the forceful deprivation of a person of his rightful ownership or possession of property by the police personnel resulting in "serious misconduct". Therefore, this court cannot find fault on the action of the Commission in directing lodging of FIR.
20. Regarding the allegation of financial mismanagement and corruption, though there was no such allegation in the complaint filed before the Commission. Such allegation of financial irregularities came to the notice of the Commission by virtue of the enquiry conducted by its own Investigator which can be termed as "any other source" and/ or "suo moto" by the Commission itself. Having concluded thus, the next question arises whether the such allegation of financial irregularities and mismanagement would come under the Page No.# 19/23 fold of "serious misconduct".
21. As discussed hereinabove, a bare reading of the Explanation to the Section 78(1) of the Act, clearly demonstrate that the act or omission of a police officer that leads to or amounts to death in police custody, and/or grievous hurt and / or molestation or rape or attempt to committing rape, and / or arrest or detention without due process of law and / or forceful deprivation of a person of his rightful ownership or possession of property and / or blackmail or extortion and / or non registration of First Information Report, amounts to "serious misconduct" and the Commission has power to enquire in such situation. .
22. By stress of no imagination, alleged financial mismanagement or corruption alleged to have been committed by the writ petitioner, while serving as Commandant of the battalion, will come under such "serious misconduct" for the purpose of the Part VIII of the Act' 2007 as well as explanation given in Section 78 of the Act2007, until and unless such financial irregularities or corruption leads to or amounts to the situation as explained in Explanation (a) to (h) of the Explanation to the Section 78 (1) of the Act. The same will also not come under section 78(2) of the Act.2007, as neither the Government nor the Director General of Police referred the matter to the learned Commission. Instead, the Director General of police relied on the enquiry conducted by CID, which categorically found that no material was found to charge the petitioner under provisions of PC Act.
23. Therefore, in view of the aforesaid facts and provisions of law, this Court is of the view that the action on the part of the Commission in the shape of the order dated 17.05.2010 observing that the authority concerned should take up appropriate measure for conducting criminal prosecution under the P.C. Act, Page No.# 20/23 1988 against the petitioner along with Hav/Clerk Abdull Mannan is not sustainable under the scheme of Section 78 of the Assam Police Act, 2007. However, the Learned Commission was absolutely right while directing to register FIR on the basis of the complaint dated 08.09.2008 (so far relating to illegal search and seizure" ) filed before the commission as well as directing the higher authority to initiate Departmental Proceedings against the petitioner.
24. Coming to the next contention of adherence to the principles of natural justice, this court is of the considered opinion, that in view of the decision taken on the first point, this court need not further proceed, more particularly, in view of the intervening facts, which are as follows:
I. This Court passed the following order, while issuing Notice of motion on 21.09.2010 "Heard Mr. A. K. Goswami, learned senior counsel assisted by G. Z. Ahmed appearing for the petitioner. Also heard Mr. B. c. Saikia learned Addl.
Senior Govt. Advocate, Assam.
Issue notice of motion returnable by 3.11.2010.
Mr. Saikia accepts notice on behalf of respondent Nos. 1 and 4.
Petitioner to take steps for service of notice upon respondent Nos. 2 and 3 by registered post with A/D by 23.9.2010.
Extra copies of the writ petition and annexures appended thereto be furnished to Mr. Saikia by 23.09.2010.
Mr. Goswami has prayed for an interim relief.
Heard learned counsel appearing for the parties on the interim prayer.
Page No.# 21/23 Issue notice on the interim prayer also making it returnable on the same date.
When the matter came up for motion hearing on 20.9.2010, this court directed Mr. Saikia to obtain necessary instruction from the authority with regard to interim prayer relating to launching of prosecution under the Prevention of Corruption Act, 1988 (PC Act for short) as well as the Departmental proceeding against the petitioner. Mr. Saikai has obtained necessary written instruction which has been placed before this Court. I have perused the same. On perusal of the instruction so placed, it would reveal that no Departmental Proceeding has been initiated till date and no case has been registered against the petitioner under PC Act, save and except registering Nazira P.S. Case No. 73/2010 under Sections 454/380/506/34 of the IPC.
In view of the same, in my considered opinion it is a fit case for providing interim protection to the petitioner as prayed for, relating to launching of prosecution under PC Act. Accordingly, it is provided that till the interim matter is heard and disposed of, the prosecution under the PC Act shall not be initiated against the petitioner.
The instruction so placed before this Court by Mr. Saikia is kept on record.
A copy of this order be furnished to Mr. Saikia during the course of the day".
II. During the pendency, though no FIR was registered on the basis of the Complaint dtd. 13.08.2010 filed before the learned Commission but Nazira PS case No.73/2010 was registered u/s 454/380/506 IPC on 13.08.2010. Such FIR was filed on a written complaint by Ikram Hussain, the complainant No.2 of the Complaint dated 08.09.2008 filed before the Learned Commission. The contents of the allegation in the FIR is also same to that of the complaint filed before the Learned Commission i.e. regarding illegal search in the House of Page No.# 22/23 Lakhyadhar Barua and threatening the public by the writ petitioner. However, there was no allegation regarding cutting and using valuable tree belonging to the Battalion, for personal use by the writ petitioner. Such, FIR is also a part of the records of the Commission, submitted before this Court. Infact, such FIR was forwarded to the learned Commission by IGP (Logistic) vide communication dated 16.03.2011.
III. It is stated at the Bar that such police case ended in final Report which was also accepted by the Jurisdictional Magistrate.
IV. It is also stated at the Bar that a departmental proceeding was initiated against the writ petitioner pursuant to the order of the Learned Commission, impugned in the present proceeding, as there was no interim order barring such proceeding. It is stated that the said Departmental Proceeding also ended in favor of the writ petitioner, discharging him from the charges.
V. The order of registering FIR on the allegation of the complainant has substantially been complied with during the pendency of this proceeding, inasmuch as both the complains (dated 08.09.2008 and 13.08.2010) are same. The order of directing Departmental Proceeding has also been complied with during pendency of this proceeding.
25. Therefore, at this stage, going into the issue of violation of principles of natural justice, shall only be academic, which, endeavor, this Court is not inclined to carry, in the peculiar facts and circumstances of the case.
26. As this court has held that the learned Commission could not to have directed for registration of FIR under P.C. Act, on the basis of alleged misappropriation or financial irregularities, the same being not within the purview of the explanation of "serious misconduct", therefore, it is held that at this stage, the writ petitioner cannot be prosecuted under P.C. Act,1988 on the Page No.# 23/23 basis of the findings of the learned Commission in the shape of order dated 12.05.2010 and 15.07.2010.
27. In terms of the aforesaid discussions and findings, this writ petition is allowed to the extent indicated above. However no order as to cost.
JUDGE Comparing Assistant