Tripura High Court
Sri Subrata Kumar Malakar vs The State Of Tripura on 10 February, 2022
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 11
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl. Petn. No. 55 of 2021
1. Sri Subrata Kumar Malakar, son of Sri Sukhendu Kr. Malakar,
resident of Ushabazar, P.O.Chinaihani, P.S. Airport, Sub-Division-
Sadar, District: West Tripura.
.....Petitioner
-V E R S U S-
1. The State of Tripura, represented by the Chief Secretary to the
Government of Tripura, Home Department, having his office at
New Secretariat Complex, P.O. Kunjaban, P.S. NCC, Sub-Division-
Sadar, District: West Tripura, Pin-799010.
2. Smti Srabani Deb, wife of Sri Subhra Sankar Laskar, resident of
Banamalipur Dighir Par, Agartala, P.O. Agartala, P.S. East Agartala,
Sub-Division-Sadar, District: West Tripura, Pin-799001.
3. Sri Subhra Sankar Laskar, C/o Dr. Santimoy Laskar, resident of
Banamalipur Dighirpar, P.O. Agartala, P.S. East Agartala, Sub-
Division: Sadar, District: West Tripura, Pin-799001.
..... Respondents.
B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD For Petitioner(s) : Mr. A. Pal, Advocate.
For Respondent(s) : Mr. R. Datta, P.P.
Mr. S. Lodh, Advocate.
Mr. S. Das, Advocate.
Date of delivery of hearing : 04.02.2022
Date of delivery of
Judgment & order : 10.02.2022
Whether fit for reporting : YES
JUDGMENT & ORDER
This Criminal Petition under Section 482 of the Code of Criminal Procedure, 1973 (for short „Cr.P.C.‟), is filed to quash the proceedings/investigation initiated against the petitioner by the complainant which has been marked as NCC P.S. Case No.62 of 2014 under Sections-7, 13 of Prevention of Corruption Act, 1988 read with Page 2 of 11 Sections-409, 420, 468, 120B and 34 of IPC and thereafter, quash the impugned complaint, the charge sheet No.56/2020 of NCC P.S. dated 10.09.2020 and the impugned proceeding bearing registration No. Special (PC) 01 of 2020.
[2] The case of the prosecution, in brief, is that on 11.01.2011, the petitioner submitted a report on the works executed by Sri Subhrasankar Laskar, Junior Engineer, Rural Development Department to the District Magistrate & Collector, West Tripura. The District Magistrate & Collector, West Tripura, on 23.04.2011 instructed the Block Development Officer, Mohanpur R.D. Block, to file a criminal case against above named person. Thereafter, an FIR was filed on 06.05.2011 against Sri Subhrasankar Laskar. The Hon‟ble Gauhati High Court, Agartala Bench on 21.12.2012 quashed the FIR. On 11.09.2012 the petitioner, received notice from the Hon‟ble Lokayukta, Tripura regarding a complaint lodged against him regarding intentional abuse of his official position as such to obtain any undue gain or favour to any other person and making many assets by means of corrupt practices. The respondent No.2 who is the wife of SrI Subhra Sankar Laskar, filed a PIL on 12.09.2013, which was marked as WP(C) (PIL) 02 of 2013 alleging corrupt practices against the petitioner and another. Subsequently, the said petition was disposed of directing the State of Tripura to ensure that in future all its departments follow the Financial Rules and supplies are made to the departments only after inviting tenders in accordance with the Rules.
[3] On 20.06.2014, the respondent No.2 filed a criminal complaint which was subsequently forwarded to the NCC police station and thereafter a criminal case was registered by the New Capital Complex police station on 28.06.2014 against the petitioner and others under Sections-7, 13 of Prevention of Corruption Act, 1988 read with Page 3 of 11 Sections-409, 420, 468, 120B and 34 of IPC. Thereafter, vide order dated 28.11.2015 the Hon‟ble Lokayukta held that the complainant has failed to prove that the petitioner earned huge amount of money which is disproportionate to his known sources of income and therefore, concluded that no prima facie material in the case to initiate a full- fledged enquiry.
[4] Thereafter, the Investigating Agency on 10.09.2020 submitted charge sheet bearing No.56/2020 of NCC P.S. The petitioner filed a writ petition before the Court for quashing of the charge-sheet and the consequent criminal proceeding lunched against the petitioner. Subsequently, the same was allowed to be withdrawn on 15.02.2021 to file appropriate application challenging whose investigation is being dragged for the last six years and harassment is being caused for malicious institution of the criminal case with the sole purpose of wreaking vengeance against him. Hence, the present petition has been preferred by the petitioner to quash the charge sheet No.56 of 2020 dated 10.09.2020 and the written complaint lodged by the complainant which has been marked as NCC P.S. Case No.62 of 2014.
[5] Heard Mr. A. Pal, learned counsel appearing for the petitioner. Also heard Mr. R. Datta, learned P.P. appearing for the respondent-State and Mr. S. Lodh, learned counsel assisted by Mr. S. Das, learned counsel appearing for the remaining respondents.
[6] Mr. Pal, learned counsel appearing for the petitioner has submitted that the respondent No.2, lodged a written complaint with the Court of learned Chief Judicial Magistrate, West Tripura alleging that the petitioner being a public servant has misused his official position and with an intention to cheat and misappropriate huge government fund/public-exchequer, committed criminal breach of trust and thereby not only earned huge unaccountable property but, have also provided illegal benefit to his close relatives, kins and others.
Page 4 of 11[7] He has further submitted that the respondent No.2 is the wife of the respondent No.3 who had served as Junior Engineer, Gr-I under the control of the present petitioner when he was posted as Executive Engineer, Agartala Division under the Rural Development Department. The petitioner submitted a report to the District Magistrate & Collector, West Tripura [Annexure-2 to the petition] regarding the physical and financial progress of the pending/half done works executed by the respondent No.3 as Implementing Officer and the said report detailed the physical and financial irregularities of said respondent No.3, the husband of the respondent No.2, the complainant herein. On the basis of the said report, the then DM & Collector, West Tripura directed to institute a criminal case against the respondent No.3 and in compliance of the direction of the then DM & Collector, West Tripura an FIR was lodged by the then BDO, Mohanpur R.D. Block on 06.05.2011. The said FIR was lodged for misappropriation of Government money and was marked as Sidhai P.S. Case No. 43 of 2011 registered under Sections-409/468 of the IPC read with Section-13(ii) of the Prevention of Corruption Act, 1988.
[8] Mr. Pal, has further pointed out that as an immediate counter blast, the respondent No.3 lodged an FIR against the then DM & Collector, the then BDO, Mohanpur R.D. Block against the petitioner. Thereafter, the said FIR was registered as Sidhai P.S. Case No.01 of 2012. The aforesaid criminal case was quashed by this Court on 21.12.2012 [Annexure-3 to the petition]. Since then, the respondent No.3 has been instrumental in institution of frivolous complaints in various forums through his relatives making similar allegations as has been leveled in the instant complaint with a view to take revenge against the petitioner. Subsequently, the respondent No.2 filed a Public Interest Litigation before this Court suppressing the fact that she is the wife of the respondent No.3. The said PIL was instituted to wreak personal vengeance and to meet personal grudge against the petitioner. The sum and substance of the PIL referred to hereinabove is pari material with that of the allegations contained in the impugned complaint which has been sought to be quashed. The complainant also lodged similar complaints before the Hon‟ble Chief Minister, Tripura and the District Magistrate and Collector, West Page 5 of 11 Tripura. The aforesaid complaints were enquired into and disposed of as there was no substance in the allegations of the complaint. [ Annexure-4 is the copy of the WP(C) (PIL) 02 of 2013 and complaints to other authorities].
[9] However, the said PIL was disposed of vide judgment and order dated 02.06.2014 considering the fair stand of the learned Advocate General that in future, the Rural Development Department shall follow the financial guidelines except in those cases where the supplies are so urgently required that the tender process cannot be followed. It was also directed that regarding the individual cases, the petitioner may raise those disputes before the appropriate forum, including the Lokayukta [Annexure-5 is the copy of the judgment and order dated 02.06.2014].
[10] Mr. Pal, learned counsel has submitted that one Smt. Mousumi Das who is also a relative of the respondent No.2 lodged a written complaint with the Hon‟ble Lokayukta making same allegations against the petitioner as has been made in the impugned complaint. The Hon‟ble Lokayukta registered a case which was marked as Case No.CC.4 (LOK)/2012, took cognizance of the complaint and issued notice to the petitioner. Thereafter, a preliminary inquiry/investigation was directed to be conducted by the Deputy Superintendent of Police (P/C) attached to the Lokayukta. After conclusion of the preliminary enquiry/investigation, it was fixed for hearing, but the case was heard ex-parte because the complainant, Smt. Mousumi Das stopped appearing making appearance before the Lokayukta. Initially, the respondent No.2 was appearing before the Lokayukta and representing Smt. Mousumi Das in her capacity as an advocate. After conclusion of the preliminary hearing, the Lokayukta disposed of the case holding that the complainant has failed to establish a prima facie case and there is no material in the case to initiate full- fledged enquiry against the opposite parties. While passing the order dated 28.11.2015 in case No. CC.4 (LOK)/2012, the Hon‟ble Lokayukta made the following observations:
"10. In the present case a preliminary enquiry was conducted by the Deputy Supdt. Of Police, attached to this office. The Deputy Supdt. Of police could not find any amount standing in the name of the Page 6 of 11 opposite parties which are disproportionate to known source of income of the respondents. Consequently, I am of the view that the complainant has failed to prove that the opposite party earn3ed huge amount of money which is disproportionate to his known source of income."
[11] Mr. Pal, learned counsel appearing for the petitioner has submitted that the investigating agency after perfunctory investigation filed charge-sheet against the petitioner and others under Sections-120B, 420 of IPC read with Sections-13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 and the same has been numbered as charge sheet No.56 of 2020. From the charge-sheet it reveals that the investigation did not establish a case of disproportionate assets and sought to project a case of disciplinary proceeding as a case of criminal misconduct premised on a wrongful understanding of the judgment dated 02.06.2014 of this Court in WP(C) (PIL) 02 of 2013.
[12] Furthermore, he has submitted that in the case of State of Haryana v. Bhajan Lal, the Apex Court held that in extraordinary power under Article-226 of the Constitution or the inherent powers under Section-482 of the Cr. P.C., can be exercised to quash a criminal proceeding. It has been further held that when a criminal proceeding is manifestly attended with mala- fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused with a view to spite him due to private and personal grudge, powers Article-226 of the Constitution or the inherent powers under Section-482 of Cr. P.C. can be exercised to quash a criminal proceeding.
[13] Mr. Pal, has further submitted that Article-20(2) of the Constitution of India provides that no person shall be prosecuted and punished for the same offence more than once. Taking a cue from the above, it can be inferred that any act or omission which is punishable by any law is an offence. In the case in hand, the petitioner has been prosecuted for the same offence in more than one case and therefore, the same is violative of right of the petitioner guaranteed by Article-20(2) of the Constitution of India and therefore, warrants to be interfered with.
Page 7 of 11[14] It is further submitted that the rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem cause. It is a significant basic rule of criminal law that no man shall be put in jeopardy twice for the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section-26 of the General Clauses Act, 1897, Section-26 of the General Clauses Act, provides:
"26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
Section-300 (1) Cr.P.C. provides, inter alia:
"300 (1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- Section(1) of Section-221 or for which he might have been convicted under sub-section (2) thereof......"
[15] Mr. R. Datta, learned counsel appearing for the respondent-State in support of his case, has relied upon a case in State of Haryana and Others v. Bhajan Lal and Others, reported in 1992 Supp (1) SCC 335. At paragraph- 17 of the judgment, the Apex Court has held thus:
"17. While it was so, on November 12, 1987 Dharam Pal presented a complaint before Shri Devi Lal making certain serious allegations against Bhajan Lal, a brief note of which is given below:
Before 1985 Shri Bhajan Lal was a man of ordinary means and did not have any definite source of income, but after he was inducted in the Cabinet as a Minister and particularly after he became the Chief Minister of the State, he accumulated huge properties worth crores of rupees in the names of his family members, relations and persons close to him by misusing his power and position and also by undervaluing the market price and all those transactions are benami Page 8 of 11 in character. In the complaint, Mr Dharam Pal has given the details citing 20 independent allegations, alleging that a palatial house is being constructed at Hissar at the cost of about Rs 50 lakhs and that extensive lands at various places have been purchased either in the name of his wife, Jasma Devi, or in the names of his sons Kuldip and Chander Mohan or benami in the names of his relations etc. and that two petrol pumps valuing about Rs 5 lakhs have been installed in the name of his wife, and that certain shops have been constructed etc. Besides these allegations, it is said that Bhajan Lal has acquired several other properties either in his name or in the names of his benamidars such as shares in the cinemas of Sirsa and Adampur, besides owning trucks, cars etc. and is possessing gold, silver and diamond ornaments valuing about Rs 5 crores. The accumulation of all those properties in the shape of buildings, land, shares and ornaments etc. is far beyond his legal means and, therefore, an investigation should be directed and appropriate action be taken against Shri Bhajan Lal".
[16] Learned counsel for the respondent relied upon certain decisions particularly, in the case of State of Haryana vs. Bhajan Lal, reported in 1992 Supp (1) SCC 335 and prayed before the Court to dismiss the present petition. This Court has no hesitate to say that the citation referred by the learned P.P. Mr. R. Datta, has no relevance to the facts and circumstances of the case since, the said case only deals with quashing of FIR and the investigation which was in progress in this matter. In the present case, investigation has been completed and the charge-sheet has been filed and since the charge-sheet is silent with regard to the departmental proceedings. In the record there is no adverse remark from the department holding that the action of the petitioner on any misconduct and no action has been taken against the petitioner. This observation goes in favour of the petitioner.
[17] On perusal of the case record it reveals that during investigation, on the basis of available documents seized/obtained during investigation, the corruption issue of the petitioner has been calculated and on analysis of the same, it has been established that the income and expenditure of the petitioner has been found proportional from the test check of his statement of income and expenditure for the period from April 2009 to May 2014. Thus, the disproportionate assets of the petitioner have not been established.
Page 9 of 11[18] The investigation also established that proper procedure of inviting tender before Government purchase as per Financial Rules was not followed by the petitioner before issuing supply orders, nor approval of competent authority was taken citing urgent and exceptional circumstances for not inviting tender which invites for disciplinary action against the petitioner. In this connection this Court in its judgment in WP(C) (PIL) No. 02 of 2013 dated 02.06.2014 held that there had been total violation of the Financial Rules adopted by the Rural Development Department during the period from 2009- 10 to 2013-14 in purchasing without tender process and hence, closed the PIL directing that in future the State shall ensure that all departments follow Financial Rules and ensu8re that supplies are made to be departments only after inviting tenders in accordance with Rules. Secondly, it was also stated by this Court that in those exceptional cases, where supplies are urgently required and tender process cannot be followed, a reasoned decision by a responsible officer should be taken and placed on file.
[19] A perusal of the material available on record and having regard to the facts and circumstances of the case it reveals that the balance of convenience and inconvenience tilts heavily in his favour and therefore, reasons, justice, equity and fair play demand that the impugned proceedings and the criminal complaint be quashed, in exercise of powers under Section- 482 of Cr. P.C. [20] The arguments as advanced by Mr. Pal, learned counsel appearing for the petitioner, it reveals that where an act constitutes an offence under two enactments and once he has been prosecuted for an offence in any of the enactment under which the act constitutes an offence, then he cannot be tried for an offence under the other enactment else the same would be violative of the principle of law that no man shall be put in jeopardy twice for the same offence.
[21] From a conspectus of the facts and circumstances stated supra, it is apparent that the impugned complaint and the criminal proceedings were initiated in grave violation of the settle principles of law. The entire proceeding Page 10 of 11 is wholly illegal as it offends the fundamental right guaranteed by the Constitution of India. it is submitted that the petitioner cannot be prosecuted more than once for the same offence or the same set of allegation constituting the same offence as the same will lead to infraction of the right of the petitioner guaranteed under Article-20(2) of the Constitution and Section-300 of Cr. P.C. Therefore, the impugned complaint and proceedings merits to be quashed in exercise of powers enshrined under Section-482 of Cr. P.C. to prevent the abuse of the process of the Court or otherwise to secure the ends of justice.
[22] It is represented by the counsel appearing for the defacto- complainant that she is a practicing advocate and she is the wife of subordinate employee of the petitioner working in the same Government organization and in the interest of the society, in order to curb the corruption of the petitioner, since he had made disproportionate assets through corruption, the defacto- complainant filed the complaint.
[23] A fair reading of the charge-sheet does not indicate as to the action of the Government department where the petitioner is working and there is no whisper with regard to disproportionate assets and further, no action has been initiated by the Government department against the petitioner for allotting the works to an unapproved person/office.
[24] This Court has no hesitation to read in between the lines with regard to the relationship involving certain transactions between both the petitioner and the husband of the defacto-complainant. In all probability, a reasonable inference needs to be drawn to say that because some financial transactions or differences due to employment/professionals likes or dislikes what the husband of the defacto-complainant could not do directly has, instigated his wife who is a practicing advocate to file a complaint against the petitioner. This is nothing else but an arm-twisting method. The advocate/defacto-complainant ought to have felt the responsibility of an advocate in the society for genuine cause, but knocking the doors of Court with Page 11 of 11 at this kind of vindictive nature and arm-twisting nature adopted by the defacto-complainant could not be appreciated.
[25] In Anand Kumar Mohatta v. State (Govt. of NCT of Delhi) Department of Home and Another the Hon‟ble Apex Court has held that "482. Saving of inherent power of the High Court- nothing in this code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
[26] In view of above discussions and observations, this Court has no hesitation in quashing the FIR and the charge-sheet filed against the petitioner. Hence, the impugned proceeding/investigation commenced/initiated against the petitioner being numbered Special (PC) 01 of 2020, Charge-sheet No.56 of 2020 dated 10.09.2020 and the written complaint NCC P.S. case No.62 of 2014 are hereby set aside and quashed.
[27] The Chairman Bar Council and the President of the Bar Association are informed to advise the advocate/defacto-complainant henceforth, not to recourse in filling such type of complaints.
[28] Accordingly, the instant criminal petition stands allowed and disposed of. As a sequel, miscellaneous applications pending, if any, shall stand closed.
[29] Registry to furnish copy of the order to the Chairman, Bar Council an President Tripura High Court Advocate Bar Association.
JUDGE A.Ghosh