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