All the above petitions, challenge has been made to the proceeding of Special Case No. 28 of 2012 pending in the Court of Special Judge, Assam, Guwahati and certain orders thereof, hence all the cases are taken up together for disposal by way of this common judgment and order.

2. The facts in nutshell is that one A.K.Trivedi, A.C.S., lodged an FIR before the Officer-in-Charge, Kokrajhar Police Station on 2.6.2006 stating inter alia that the Platoon Commandant of Home Guard Office, Kokrajhar have cheated several other Homeguards. Accordingly, Kokrajhar P.S. Case No.137/06 U/S 7 of the Prevention of Corruption Act, 1988 was registered. On completion of the investigation police submitted final report as on 14.12.2011 and then the learned Special Judge served notice upon the informant to file his response. Thereafter, by an order dated 9.1.2012 the learned Special Judge rejected the final report and directed the S.P., Kokrajhar to re-investigate the case and submit appropriate report. In pursuance to the aforesaid order reinvestigation was carried out and charge-sheet was submitted against Dharmaduttta Rava and Sarbananda Mali U/S 7 of the Prevention of Corruption Act and the Court upon taking cognizance of the offence proceeded for trial in Special Case No. 28 of 2012 against said two accused person Dharma Dutta and Sarbananda Mali.

3. During the trial prosecution examined... number of witnesses and subsequently by the order dated 9.5.2013 the learned Special Judge took cognizance against three police officers namely, Hemanta Kumar Das, the then Addl. S.P.Kokrajhar, Prasanta Kumar Dutta, the then S.P.Kokrajhar and Sri Abdus Shubhan Laskar the then I.O.of the said case U/S 120B/217/218 IPC with the following observation:

“Thus from the evidence of PW 13 Sri Abdus Shubhan Laskar and the case diary it appears that the then Addl. S.P., Kokrajhar, Sri Hementa Kumar Das and Sri Prasanta Kumar Das, S.P. Kokrajhar made conspiracy with investigating officer Sri Abdus Shubhan Laskar to save the accused persons namely, Dharmadutta Rava, Platoon Commandant and Havildar Sarvananda Mali from legal punishment and all of them disobeyed the direction of law as to the way in which they were to conduct themselves as supervising and investigating police officials leading to filing of final report in favour of the two accused persons who had alleged taken illegal gratification at the rate of Rs.2000/- to Rs.5000/- from 31 Homeguards Trainees assuring them to get them depoloyed. Prima facie there are incriminating materials against those senior police officer U/S 120B/217/218 IPC. Accordingly, cognizance is taken against them and issued summons to them.”

4. Challenging the aforesaid order for taking cognizance two above named petitioners Prasanata Kumar Dutta and Hemanta Kumar Das have preferred the Criminal Petition No.637/13 and Criminal Petition No. 638/13 on the twin grounds that the order of taking cognizance on the basis of re-investigation conducted by the investigating officer is itself bad in law and further taking of cognizance only on the basis of evidence of I.O. without obtaining sanction U/S 197 CrPC (the petitioners being the superior police officers discharging their duties while conducting the investigation) is bad in law and hence cannot sustain.

5. The learned counsel for the petitioner, Mr. S. Borgohain vehemently contended that there is express bar on the part of the Court to direct for reinvestigation and order of taking cognizance without prosecution sanction against the officials discharging official duties is itself illegal. Mr. Buragohain heavily relied upon the decision of Hon’ble Apex Court reported in (2009) 6 SCC 332 Mithabhai Pashabhai Patel & ors-vs- State of Gujarat; (2013) 5 SCC 762 Vinay Tyagi –vs- Irshad Ali @ Deepak and ors and (2016) 8 SCC 722 Surinderjit Singh Mand and another –vs- State of Punjab and another.

6. The scope of direction for re-investigation has been dealt with in the aforesaid decision