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IN THE HIGH COURT OF GAUHATI (ITANAGAR BENCH)
Rumi Kumari Phukan, J.
Hari Pado Biswas - Petitioner
Versus
State of Arunachal Pradesh & Ors. - Respondents
Cri. Pet. No. 18 (AP) of 2015
Decided On : 16-10-2015
For the Petitioner: Mantaw.
For the Respondents: Kumari.
Headnote:
Code of Criminal Procedure, 1973 - Sections 482, 156(1) and 155(2) – Indian Penal Code,1860 - Sections 120B/420/467/468/471 - Delhi Special Police Establishment Act, 1946 - Sections 5 and 6 - Prevention of Corruption Act, 1988, - Sections 13, 13(2)/13(c) - Praying for quashing and setting aside - Violation of mandatory provisions - Jurisdiction of investigation by the CBI - Suo motu registered - Bills were fake and fabricated - Application has been filed under Section 482 of Code of Criminal Procedure, 1973, praying for quashing and setting aside of impugned investigation in respect of accused, President of National Youth Project being conducted by Central Bureau of Investigation, in connection with 13 (2)/13(1)(d) of Prevention of Corruption Act, 1988, read with Sections 120B/420/467/468/471 IPC - Alleging violation of mandatory provisions of Sections 5 and 6 of Special Police Establishment Act, 1946, whereby exercising powers and jurisdiction of investigation by CBI in the State without approval of State Government in respect of petitioners Society - Brief facts of case, is that Central Bureau of Investigation, Guwahati, has suo motu registered a case bearing registration No. RC 0172015 u/ss. 13(2)/1 3(1)(d) of Prevention of Corruption Act, 1988, read with Sections 120B/420/467/468/471 IPC five central Government employees of Khadi and Village Industries Commission - Allegedly for having preparing forged bills/cash memos in connivance with aforesaid central Government employees - First Information Report of CBI - Involvement of petitioner/NGO has been found subsequently - Respondent is not required to obtain prior approval/consent of Central Government in order to register and investigate an offence against employees of Central Government, Section 6 of Delhi Special Police Establishment Act, 1946 - Central Bureau of Investigation cannot assume jurisdiction without consent of State Government by bye-passing mandatory provision of Section 6 of said Act -– Held, Where there is an express legal bar engrafted in any of provisions of Code or concerned Act to institution and continuance of proceeding at or where there is specific provision, Code or Act providing efficacious redress or grievances for aggrieved party - Where criminal proceeding is manifestly attended with mala fide or where proceeding is maliciously restituted with an ulterior motive or wreaking vengeance on accused with a view to spite him due to private and personal grudge - In exercising jurisdiction under Section 482, High Court would not embark upon an enquiry - Allegations in complaint are likely to be established by evidence or not - While exercising jurisdiction under section 482 of Code, the High Court would not ordinarily embark upon an enquiry whether evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained - That is function of trial Judge/Court; State JT SC: SCALE 767 : Cr. LJ - Inherent jurisdiction under section 482 has to be exercised sparingly, carefully and with care and caution and only when such exercise is justified by tests specifically laid down in section itself; SCC - Applicable to case of petitioner - He has been Hilly implicated in First Information Report - Allegation and certain incriminating materials has also been recovered and seized from his possession and genuineness and authenticity of allegations cannot be tested at this stage, which can only be tested at stage of trial or can be resisted at time of framing of charge - Petition stands rejected
Rumi Kumari Phukan, J.
The present application has been filed under Section 482 of the Code of Criminal Procedure, 1973, praying for quashing and setting aside of the impugned investigation in respect of accused Sri Hari Pado Biswas, President of National Youth Project, Arunachal Pradesh, being conducted by the Central Bureau of Investigation (CBl), ACB, Guwahati Branch, in connection with RC 0172015 A0005 dated 22.06.2015 u/ss. 13 (2)/13(1)(d) of Prevention of Corruption Act, 1988, read with Sections 120B/420/467/468/471 IPC, alleging violation of mandatory provisions of Sections 5 and 6 of Delhi Special Police Establishment Act, 1946, whereby exercising the powers and jurisdiction of investigation by the CBI in the State of Arunachal Pradesh without approval of the State Government in respect of the petitioner's Society.
2. The brief facts of the case, is that the Central Bureau of Investigation (CBI), Guwahati, has suo motu registered a case bearing registration No. RC 0172015 dated 22.06.2015 u/ss. 13(2)/1 3(1)(d) of Prevention of Corruption Act, 1988, read with Sections 120B/420/467/468/471 IPC, against five central Government employees of Khadi and Village Industries Commission (KVIC, for short), H Sector, Itanagar, namely (1). Sri Amit Pura Chobin, (2). Sri Ajaz Asghar, the then Development Officer, KVIC, H-Sector, Itanagar, (3). Sri Dhanraj Lama, the then Assistant Development Officer, KVIC, H-Sector, Itanagar, (4) Sri Jitendra Prasad Singha, the then Superintendent, KVIC, H-Sector, Itanagar, and (5). Sri Jyothish Chandra Deka, the then Supervisor, KVIC, H-Sector, Itanagar. The petitioner, herein, has also been arrayed as accused No. 6 in the case allegedly for having preparing forged bills/cash memos in connivance with the aforesaid central Government employees. As per the First Information Report (FIR) dated 22.06.2015 of the CBI, the involvement of the petitioner/NGO has been found subsequently. Though the respondent is not required to obtain prior approval/consent of the Central Government in order to register and investigate an offence against the employees of the Central Government, however, the CBI is required to obtain prior approval/con-sent of the State Government if it intends to exercise the powers and jurisdiction of their investigation in a State as mandated under Section 6 of the Delhi Special Police Establishment Act, 1946. The Central Bureau of Investigation (CBI) cannot assume the jurisdiction without the consent of the State Government by bye-passing the mandatory provision of Section 6 of the said Act. In other words, according to the Learned counsel for the petitioner, the respondent CBI cannot suo motu enter into the State jurisdiction in a casual manner at its own free will. The said act of the CBI is highly illegal.
3. The petitioner while denying the entire allegations as made in the First Information Report (FIR) in question, has submitted that provisions of Section 13 of the Prevention of Corruption Act, 1988, does not attract to a non-public servant. It can be charged only against a public servant which is defined under Section 21 of the IPC. The petitioner being a non-public servant, cannot be charged under Section 13 of the said Prevention of Corruption Act, 1988. As such, according to the petitioner, the Anti-Corruption Court would also lack its jurisdiction in trying the offence at the event of the case being filed into charge sheet. It is the mandate of Section 4 of the said Act of 1988 that in order to try a case under the Prevention of Corruption Act, 1988, the accused has to be charged under the said Act. However, other substantive real penal sections could be tried provided the accused is charged under the provisions of the said Act of 1988.
4. The respondent Central Bureau of Investigation (CBI) has filed the counter affidavit. In the said counter affidavit, it has been stated that the instant case pertains to misappropriation of Government funds allotted to KVIC un
