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2010(3) Crimes 478 (Gau.)
GAUHATI HIGH COURT
H. Brauah, J.
Central Bureau of Investigation —Petitioner
versus
Swapan Kumar Bose and Ors. —Respondents
Criminal Revision No. 4 of 2009
Decided on 14.6.2010
Held: Issue before us is whether a second charge sheet is maintainable filed after obtaining valid sanction to prosecute the respondents. Discharge does not tantamount acquittal, therefore, the accused(s) cannot seek refuse under Section 300 Cr PC Apex Court while dealing with the case in between State of Karnataka through C.B.I. v. C. Nagarajaswamy, AIR 2005 SC 4308 in clear terms held that a second trial with proper sanction for prosecution is not barred. In paragraph 26 and 32 of the case (supra) the Apex Court held as under:
“26. In view of the aforementioned authoritative pronouncements, it is not possible to agree with the decision of the High Court that the Trial Court was bound to record either a judgment of conviction or acquittal, even after holding that the sanction was not valid. We have noticed hereinbefore that even if a judgment of conviction or acquittal was recorded, the same would not make any distinction for the purpose of invoking the provisions of Section 300 of the Code as even then, it would be held to have been rendered illegally and without jurisdiction.
32. Keeping in view of the aforementioned principles and having regard to the facts and circumstances of this case, however, we are of the opinion that the interest of justice shall be subserved if while allowing these appeals and setting aside the judgments of the High Court, the trial court is requested to dispose of the matters at an early date preferably within six months from the date of communication of this order, subject of course, to rendition of all cooperation of the respondents herein. In the event, the trial is not completed within the aforementioned period it would be open to the respondents to approach the High Court again. These appeals are disposed of with the aforementioned directions. No costs.
The ratio laid down by the Apex Court in the case (supra) squarely supports the case of the revision petitioner. The trial court seemed to have committed error and illegality in discharging respondents vide impugned order dated 28.4.2009.
The impugned order is accordingly, set aside and quashed. The matter is remanded back to the learned Special Judge, CBI, Aizawl to proceed with the trial. Registry is directed to transmit back the LCRs to the learned Special Judge forthwith. (Paras 8 & 9)
JUDGMENT AND ORDER (ORAL)
H. Baruah, J.—None appears for and on behalf of the revision petitioner. Heard Mr. P.C. Prusty, learned counsel for the respondent Nos. 2 and 3. Also heard Mr. A.R. Malhotra, learned counsel for the respondent No.1, who enters appearance on his behalf.
2. This instant revision is filed against the order dated 28.4.2009 passed by Special Judge, CBI (Prevention of Corruption Act) Mizoram, Aizawl in Special Case No.1 of 2008, whereby and whereunder, the respondents, namely Sri S.K. Bose, Sri K.B. Som and Shri S.D. Roy, all officers of Telecom department, are discharged from the charges indicated in the charge sheet filed on 24.8.2001. By this revision the legality and validity of the impugned order dated 28.4.2009 is challenged by the Central Bureau of Investigation, for short CBI.
3. The facts involves in this revision may be projected as under:
A CBI case under RC 2(A)98SIL having been filed and investigated into a charge-sheet was laid on 24.8.2001 against Sri S.K. Bose, Sri K.B. Som and Shri S.D. Roy, the respondents herein and one K. Sena, since deceased under Section 120B/420/468 and 471 IPC and under Section 13(2) read with Section 13(1)(d) of the PC Act, 1988 after obtaining prosecution sanction under Section 19 of the PC Act. However, prosecution section under Section 197 of the CrPC having been refused by the sanctioning authority did not accompany the charge-sheet. By an order dated 17.6.2004 the learned Special Judge, CBI, Aizawl discharged the accused persons holding the sanction for prosecution accorded under Section 19 of the PC Act not sufficient and defective. The trial court also held that the CBI, the petitioner herein also cannot prosecute the accused persons under Section 120B/420/468 and 471 IPC for want of sanction prosecution under Section 197 of the Criminal Procedure Code.
4. The aforesaid order dated 17.6.2004 was, however, not challenged before the appropriate forum by the CBI. However, the prosecuting agency i.e. CBI obtained sanction for prosecution from the competent authority under Section 19 of the PC Act as well as under Section 197 of the CrPC on 28.12.2004 and consequently a second charge-sheet was filed on 28.12.2008 on the identical charges-against the revision petitioner on 18.2.2008. Consequent upon the service of summons the respondents appeared before the court of Special Judge on 22.4.2008.
5. In the meantime, Swapan Kr. Bose, one of the respondents of this revision filed W.P (c) No.1704 of 05 challenging the legality and maintainability of the order dated 28.12.04 (Annexure 6 to the writ petition) whereby sanction under Section 19(1)(a) of the PC Act, 1988 and under Section 197 (1)(a) of the Code of Criminal Procedure has been accorded for prosecution of the petitioner, Swapan Kumar Bose and others. This court by an order dated 5.6.2007 remanded the matter back to the court of Special Judge, CBI, Aizawl directing the party to agitate the same before the trial court. Thereafter the matter came up before the learned Special Judge and it by impugned order dated 28.4.2009 discharged the revision petitioners on the ground that a second charge-sheet on the basis of second prosecution sanction is not at all maintainable in the eye of law.
6. The Central Bureau of Investigation (CBI) being aggrieved by the order as indicated above has approached this court by filing this revision petition challenging the legality and correctness of the impugned order.
7. We have Heard learned counsel for the respondents at length. It has been submitted by the learned counsel for the respondents that no illegality has been committed by the learned Special Judge in discharging the respondents from the charges levelled against them vide second charge-sheet filed on the basis of subsequent sanction for prosecution, one under Section 19 of the PC Act, 1988 and the other under Section 197 CrPC. It is argued by Mr. A.R. Malhotra that while submitting the first charge-sheet the prosecuting a
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