Durga Prasad Borodoloi vs State Of Assam And Anr

Rumi Kumari Phukan, J

Heard Mr. M Dev, learned counsel appearing for and on behalf of the petitioner as well as Mr. A Chamuah, learned counsel representing respondent No. 2. Also heard Mr. B J Dutta, learned Addl. PP for the respondent No. 1.

The petitioner has been arrayed as an accused in Special Case No. 4/2015 pending before the Special Court, Assam, wherein the charge-sheet No. 17/2015 has been submitted as on 22.01.2015 u/s 406/409/420/474/201 of IPC read with Section 13(a)(c)/13(2) of the Prevention of Corruption Act arising out of Dispur PS case No. 1219/11 dated 03.11.2011.

Briefly stated the prosecution case is that while the petitioner was working as a Divisional Commandant Home Guard at Sontipur District, one Paban Hazarika lodged a complaint before the CJM, Tezpur on 01.11.2011 alleging that the present petitioner issued forged certificate to the said complainant and some others in the name of imparting training thereby cheated them and misappropriated the wages by paying less amount to the trainees @ Rs. 600/- against the Govt. sanction amount of Rs. 956/- after completion of the training. The complaint was forwarded to the Tezpur Police Station and the same was registered as Tezpur PS Case No. 1219/2011 u/s 120(B)/409/420/468/477 IPC read with Section 13(a)(c)/13(2) of the PC Act. While the case was under investigation the accused/petitioner preferred the pre-arrest bail application before this Court and the same was rejected and thereafter further portion of the investigation was conducted by the CID and one of the IO of the CID who conducted the rest of the investigation has forwarded the charge-sheet to the O/C Tezpur to submit the charge-sheet before the Court concerned under the said Section of law. The Court accordingly by its order dated 19.02.2015 has received the charge-sheet along with the forwarding report from the O/C Tezpur and took cognizance of offence under said section of law against the accused/petitioner. The accused made his appearance in the said case and while the case was fixed for furnishing of copy and inspection of documents, the petitioner came up with the present petition on the sole ground that the CID has no authority to submit the charge-sheet as the said Tezpur PS Case No. 1219/2011 was originally registered by Tezpur PS as directed u/s 156(3) of CrPC and as such the entire proceeding of the aforesaid case is bad in law for want of jurisdiction, as CID has not registered any case, of its own and hence entire proceeding is liable to be quashed and set aside. Apart from above, another ground for challenge is, that the informant has filed the case on false accusation.

Learned counsel for the petitioner Ms. Dev has vehemently submitted that a serious abuse of process and glaring injustice has been committed in the instant case by way of initiating a criminal proceeding by the CID, Assam, contrary to law and hence the continuance of criminal proceeding before the special Court against the petitioner is bad in law and liable to be quashed and set aside. The learned counsel for the State Mr. B J Dutta adopted argument of the learned counsel for the respondent No. 2.

Mr. Chamuah, learned counsel for the respondent No. 2 by referring to the affidavit filed by them along with document annexed, has opposed the submission of the learned counsel for the petitioner that they have not placed the entire matter before the Court properly.

Due consideration is given to the submission of learned counsel for both the parties and have also gone through the documents on record as well as ground agitated in the affidavit.

Now, on perusal of the entire matter, it reveals that present case was registered by the Tezpur PS and charge-sheet has also been filed under the said PS but only thing appears is that the investigating officer from CID has endorsed the findings in the charge-sheet and forwarded the same to the O/C concerned, to submit the same before the Court and accordingly on being forwarded, by I/O of Tezpur PS, the Court accepted the charge-sheet under the same Tezpur PS Case No. 1219/2011.

The main contention of learned counsel for the present petitioner, is that the CID cannot submit charge-sheet against them as the said case was never transferred to them and there was no order as such to justify the action of CID. It has been submitted that Tezpur PS failed to submit any FF for more than 2 (two) years and subsequently the present charge-sheet that has been filed by the CID is wholly unjustifiable. It is challenged that once the officer of Tezpur Police Station was entrusted to investigate the case suddenly CID has found prima facie evidence to file the charge-sheet is ex-facie illegal as CID is not empowered to investigate the case while the case was already investigated as per the direction of the Court u/s 156(3) of CrPC by a police officer of a police station. The CID can only provide intelligence input or to assist the investigating officer but have no authority to investigate the case as it is beyond the jurisdiction of CID.

Accordingly, Ms. Dev has vehemently contended that the CID has no legal authority and competence to proceed with the investigation against the petitioner and to submit the charge-sheet which is continuation of the earlier criminal investigation, in absence of any separate registration of the case on the part of the CID. Further, it has also been contended that the FIR simply disclosed a case of falsity and fabrication which is also liable to be quashed and set aside.

The learned counsel for the respondent No. 2/informant has drawn the attention of this Court towards the document that has been annexed with his affidavit to disclose as to under what circumstances the CID has stepped into the investigation. In this context, first reference has been made to the order so passed in AB No. 3884/11 dated 09.01.2012 (vide annexure-1) and also another document that has been annexed. In the aforesaid bail pet. No. 3884/11 while petitioner prayed for pre-arrest bail in connection with aforesaid Tezpur PS Case No. 1219/11, this Court passed the following order:

This bail application u/s 438 Cr.P.C has been filed by the accused/petitioner, Sri Durga Prasad Bordoloi praying for bail, apprehending his arrest, in connection with Tezpur PS Case No. 1219/11 u/s 120(B)/409/420/468/477 IPC.

Heard Mr. PC Dey, learned counsel for the petitioner and Mr. K Munir, learned Addl. PP, Assam. Also heard Mr. A Chamuah, learned counsel for the informant objecting the bail prayer.

Also perused the case diary.

The complainant's case is that the Govt. had sanctioned only 460 posts of Home Guard. However, instead of 460, the petitioner trained 600 candidates in violation of the Govt. notification.

The other allegation of the informant is that against the fixed stipend of Rs. 956/-, the trainees were getting only Rs. 600/- as stipend and in this way the accused has misappropriated a large amount of money. With regard to the payment of stipend, Mr. Dey, learned counsel for the petitioner submitted that the register will prove that all the trainees wee given Rs. 956/- per month and not Rs. 600/, as has been alleged in the complaint.

Needless to mention herein that no officer, more particularly, in the rank of a Senior Police Officer would commit a blunder to put less amount of stipend in the payment register instead of mentioning the actual amount. However, some of the candidates stated before the I.O about the less payment of the stipend money.

Be that as it may, a more serious allegation is given regarding training of excess number of candidates. In the case diary, some of the appointment letters signed by the present petitioner as the commandant, Assam Industrial Security Force Bn-1 are available. In this regard, no clarification has come from the petitioner.

The above apart, the investigation is not being done in a scientific manner. Since the accused is a Senior Police Officer, it was proper for the police department to constitute a team of Police Officer headed by a Sr. Police Officer to unearth the allegations. However, the investigation was handed over to a Sub-inspector of Police and it is not expected that such a small ranking police officer would be able to make any impartial or fair investigation against the petitioner. Besides this, the police department has also not taken any serious departmental action against the petitioner so far. In this way, it appears that the petitioner is influencing the investigation.

For the foregoing reasons, the prayer for bail is rejected.

The interim granted on 28.11.2011 stands vacated.

Registry is directed to forward a copy of this order to the DGP, Assam, Guwahati immediately.

It has been now submitted that as the copy of the said order was forwarded to the DGP, Assam, Guwahati, and as such the DGP directed the Additional Director General of Police, CID to constitute a team of CID officers, headed by a Deputy Superintendent of Police (CID) and to take over the investigation of the Tezpur PS Case No. 1219/2011 (vide annexure-5). Accordingly, it has been contended that as the DGP was apprised to cause proper investigation of the matter, so DGP deem it fit to empower CID to investigate the case by a team of senior police officers of CID on the basis of the aforesaid order of the Court, direction was made to investigate the matter by a team of the CID officers, which is higher than SI of Police who conducted the investigation of the aforesaid case. It has also been contended by the learned counsels for both the respondent/ that CID PS is also come under the jurisdiction of DGP. Moreover, in the context of the matter, while there was a specific direction from the High Court for causing investigation by higher officer of police, there is no illegality on the part of the DGP to constitute the police officers of the CID to investigate the matter and for this reason the entire investigation including the charge-sheet cannot be vitiated. It is stated that DGP is the highest police officer and he has authority to pass such direction to subordinate police officers under his jurisdiction which cannot crept into illegality as has been challenged.

Attention has been drawn that considering the severity of the offence Anticipatory Bail prayer was also rejected by this Court as well as by Hon'ble Supreme Court and the Govt. of Assam, while filing the bail objection before the Supreme Court has also divulged, that serious complicity of the present petitioner is made out as alleged in the FIR by the informant and the FSL report (while disputed document, was sent for examination) also supported the same. That being the position due to the severity of the offence as has been observed by this Court while rejecting the bail application, it was the duty of the higher police officers to ensure proper investigation of the matter and proceed with the same. The DGP has directed to investigate the matter by a team of CID officers and timely at the conclusion of the investigation and hence the investigating officer who completed the investigation has finally forwarded the charge-sheet to the O/C concerned who in turn, submitted the charge-sheet before the Court. So, the entire process that has been depicted in the case investigation by CID can never be blamed as blatent illegality on the part of the police department/State. Non registration of new case on the part of the CID, as indicated, only because they have simply conducted the rest part of the investigation and that does not ipso facto vitiate the entire case of prosecution.

The learned counsel for the State has also took stand that accused petitioner can't challenge the power of DGP about jurisdiction, as DGP has the authority over all police stations of Assam, for issuance of such direction, that too, in view of the direction given by this Court for fair investigation.

In the given background of the case as has been discussed above and as divulged from the documents that has been annexed, this Court is of opinion that the challenge made by the petitioner to the entire proceeding cannot be maintained. From the entire matter that has been discussed above, it reveals that CID itself has not conducted the investigation of its own but at the direction of the highest officials, only and concluded the rest part of the investigation. DGP was also well within its ambit while directing investigation by CID.

On the next, the challenge that the case has been filed on the basis of false accusation and fabricated one, the same will be the subject matter of trial. Prima facie the allegation in FIR and the materials in the charge-sheet along with FSL report the complicity of the present petitioner is made out. In 1992 Supp(1) SCC 335 Bhajan Lal Vs. State of Harayana, hon'ble supreme Court has laid down following guidelines as to under what circumstances High Court can quash the proceeding under the provision of Section 482 CrPC.

(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2)of the Code;

(3) Where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(7) where 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 and with a view to spite him due to private and personal grudge.

Further it has been held that:

§ The power of quashing of criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.

§ The investigation of an offence in the field exclusively reserved for the police officers whose powers in that filed are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds.

As in the instant case a serious complaint has been made against the petitioner which has ended at charge-sheet along with materials to proceed for trial against the accused petitioners and at this stage quashing of charge-sheet as well as the entire criminal proceeding not maintainable and would be against the interest of justice. Accordingly, this Court is not inclined to quash the proceeding as has been sought for. Petition stands dismissed. Interim order passed earlier is hereby vacated. Return the LCR to the concerned court. Let the case diaries also be returned to the learned Standing Counsel, CBI.