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2013 Supreme(Gau) 296

IN THE HIGH COURT OF GAUHATI
P.K. Musahary, J.
Apurba Kumar Nath
Vs.
State of Assam
Cri. Pet. No. 466 of 2011
Decided On: 28.05.2013

Advocates:
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Mr. P.K. Roy Chudhury, Mr. Aslam Khan & Mr. N.G. Kundu
For Respondents/Defendant: Mr. N.J. Dutta, Addl.PP

Headnote:

Criminal Procedure Code, 1973 – Sections 197(1)(b) and 482 - Prevention of Corruption Act, 1998 – Section 7 – Notification - Sanction order – Sought for quash of proceedings - During pendency of said special case, Principal Secretary, Revenue and Disaster Management Department, issued notification according fresh prosecution sanction against the petitioner u/s. 197(1)(b) of Cr.P.C. and in exercise of power conferred u/s. 19 of the P.C. Act - New prosecution sanction order was communicated by the Under Secretary to Govt. of Assam in the Revenue and Disaster Management Department along with letter in which it is categorically stated that modified prosecution order aforesaid was issued in supersession of earlier prosecution sanction order – Main challenge in this petition is directed against the 2nd/modified prosecution sanction which has been accepted by trial court vide order - Held, Court view that the learned trial court committed grave error of law in accepting the second modified prosecution sanction at late stage of proceeding when recording of evidence of prosecution witness has been completed and rejected the petitioners application/prayer for expunging evidence of PW-8. –Court totally convinced that trial Court by proceeding further with trial of case on strength of modified sanction order, has caused not only prejudice to petitioner but also failure of justice, justifying quashment of entire proceeding as totally illegal and untenable under law - Petition allowed

JUDGMENT

P.K. Musahary, J.

1. This application filed under Section 482 of the Cr.P.C. is directed against the order dated 27.8.2010 passed by the learned Special Judge, Assam, Guwahati, in Special Case No. 13 of 2006, whereby the Special PP's application for acceptance of 2nd prosecution sanction order of the Govt. in modified form was allowed and also the order dated 16.09.2011 whereby the petitioner's application for recalling the former order aforesaid was rejected. The genesis of passing the aforesaid impugned orders are as follows: The petitioner, while serving as Sub-Registrar at Hojai, was implicated in a criminal case, which was registered on the basis of an FIR lodged by one Shri Lalbihari Pashi, as Hojai P.S. Case No. 242/2002 u/s. 7 of the Prevention of Corruption Act, 1998 (P.C. Act in short). The prosecution sanction order was granted and conveyed by the Deputy Secretary to the Govt. of Assam, Revenue (Registration) Department vide No. REGN.89/2002/55 dated 17.05.2005. On completion of investigation, charge-sheet was submitted by the Officer-in-Charge on 27.042006, on the basis of which the learned Special Judge, Assam, Guwahati, (trial Court in short), registered the Special Case No. 13/2006. The charge was also framed against the present petitioner under Section 7 of the P.C. Act. As many as 7 witnesses have been examined and cross-examined and the evidence of witnesses by the prosecution has been closed on 22.02.2010. One CW was also examined to prove the prosecution sanction which was accorded by the then Deputy Secretary to the Govt. of Assam in Revenue (Registration) Department. The following facts are relevant for disposal of this petition:-

(i) During pendency of the said special case, the Principal Secretary, Revenue and Disaster Management Department, issued notification dated 15.05.2010 according the fresh prosecution sanction against the petitioner u/s. 197(1)(b) of the Cr.P.C. and in exercise of power conferred u/s. 19 of the P.C. Act. The aforesaid new prosecution sanction order dated 15.05.2010 was communicated by the Under Secretary to the Govt. of Assam in the Revenue and Disaster Management Department along with the letter dated 15.05.2010 in which it is categorically stated that the modified prosecution order aforesaid was issued in supersession of earlier prosecution sanction order dated 17.05.2005.

(ii) The learned Special Public Prosecutor filed a petition being 153/2010 on 18.05.2010 before the learned trial Court with a prayer for accepting the said modified prosecution sanction order dated 15.05.2010. The learned trial Court upon hearing the parties allowed the aforesaid prayer of the learned Spl. P.P. vide order dated 27.08.2010 and directed to keep the same on record for judicial notice.

(iii) The prosecution again filed another application on 01.08.2011 before the learned trial Court praying for issuance of summons to the prosecution witness, Shri V.K. Pipersenia, Principal Revenue Secretary to the Govt. of Assam, who accorded the new prosecution sanction order dated 15.05.2010. The learned trial Court allowed the said prayer vide order dated 01.08.2011 and issued summons to the aforesaid prosecution witness.

(iv) The aforesaid witness Shri V.K. Pipersenia appeared before the learned trial Court on 16.09.2011 for evidence.

(v) The petitioner filed a petition No. 374 of 2011 on the said order (16.9.2011) for recalling the order dated 01.08.2011. The learned trial Court, upon hearing the parties, rejected the said petition No. 374/2011 filed by the petitioner and on the same day recorded the evidence of aforesaid witness, V.K. Pipersenia as PW8.

(vi) The petitioner then filed another petition being 376 of 2011 for expunging the evidence of PW 8 recorded on 16.09.2011. The said application was also rejected by the learned trial Court vide order dated 16.09.2011.

2. The petitioner has stated that he is highly aggrieved by and dissatisfied with the impugned orders:-

(a) dated 27.08.2010 by which the l































































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