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2017 Supreme(Gau) 992
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
HITESH KUMAR SARMA, J.
Ram Narayan Sharma, S/O Late Gopal Sharma - Appellant
Versus
State of Assam – Respondent
CRIMINAL PETITION NO. 513 of 2015
Decided on : 30-11-2017.
Advocate Appeared:
For the Petitioners: Mr. AK Bhuyan
For the Respondent: Mr. SC Keyal, learned Standing Counsel, CBI.
Headnote:
Indian Penal Code, 1860 – Section 120, 420 and 468 – Criminal Procedure Code, 1973 – Section 482, 313, 305 and 63 – Quashing of Order – Central Bureau of Investigation – Guilty and Claimed trial – Figures and Embezzlement – Iridium India Telecom – Learned Special Judicial Magistrate appeared before Court and after complying with necessary formalities charges were framed against Jagannath Sharma for commission of offences to which he pleaded not guilty and claimed trial – Trial proceeded and after examination of as many witnesses prosecution closed its evidence was then examined under Section 313 of CrPC – It may be pointed out that examination of Jagannath Sharma was recorded on basis of questionnaire by way of affidavit as he could not attend Court due to certain terminal illness – Held, Question arises as to whether any person appearing representative of a corporation in an inquiry or trial before a Court is or is not such representative question shall be determined by Court can issue process in manner as provided under Section 63 Cr.PC and representative will be appointed by Corporate body for purpose of representing Corporate body during trial case even if it is assumed that M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. Ambari, Guwahati, Assam is an accused, it was not permissible for Court to summon petitioners as accused rather proper course would have been to issue notice to M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society – Assam for appointment of a new representative on death of Jagannath Sharma – Order is quashed.
By way of this application under Section 482 of the Code of Criminal Procedure (Cr.PC), the petitioners Sri Ram Narayan Sharma and Sri Sone Kalita pray for quashing of the order dated 28.04.2015 passed by the learned Special Judicial Magistrate, Assam at Guwahati in C.R Case No. 2617/1998.
2. The fact necessary for adjudication of the present application may be set forth as follows;
3. On 27.06.1994, an FIR was registered by the Central Bureau of Investigation (CBI) being RC 6(S)/94-SIU.VIII under Section 120B/420/468/471 of Indian Penal Code (IPC) read with Section 13(2) and 13 (1)(d) of the Prevention of Corruption Act, 1988. It was alleged in the FIR that during the period of 1990-1992, one Mr. Jagannath Sharma (since deceased), Managing Director of M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. Ambari, Guwahati, Assam, manipulated the accounts of M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. thereby amassing huge wealth. On completion of the investigation, a charge-sheet was laid against M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. and one Jagannath Sharma (since deceased) for offences under Section 120B/420/468 of (IPC).
4. In response to the summons issued by the learned Special Judicial Magistrate, Jagannath Sharma (since deceased), appeared before the Court and after complying with the necessary formalities charges were framed against Jagannath Sharma (since deceased) for commission of the offences under Section 120B/420/468 of (IPC) to which he pleaded not guilty and claimed trial. The trial proceeded and after examination of as many as 78 witnesses prosecution closed its evidence. Jagannath Sharma (since deceased), was then examined under Section 313 of CrPC. It may be pointed out that examination of Jagannath Sharma (since deceased), was recorded on the basis of questionnaire by way of affidavit as he could not attend Court due to certain terminal illness. Jagannath Sharma (since deceased), had prayed for adducing defence witnesses which was allowed. But even before he could adduce defence evidence he died.
5. Thereafter, the CBI submitted a report on 28.04.2015 that after the death of Jagannath Sharma (since deceased), the day to day activities of petitioner No. 3 is looked after by the petitioner herein as Chairman and Sri Sone Kalita as Vice Chairman. Acting on the said report of the CBI, the learned trial Court issued summons to the petitioner No. 1 & 2 making them accused in the case. It is this order of the learned Special Judicial Magistrate, which has been challenged in the present proceedings.
6. I have heard Mr. A.K. Bhuyan, learned Counsel for the petitioners. I have also heard Mr. S.C. Keyal, learned Standing Counsel, CBI.
7. For better appreciation of the matter in hand the impugned order is reproduced below:-
“28.4.15
CBI is duly represented.
Seen the report submitted by the CBI regarding functioning of the Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. In the report the CBI had (sic) submitted that after expiry of the then representative of (sic) J.N. Sharma, currently, Sri Ram Narayan Sharma, Chairman is representing the firm, The name of Mr. Sone Kalita, Vice Chairman, is also mentioned in the report. Considering the same issue summon to the said two persons, namely, Mr. Ram Narayan Sharma & Mr. Sone Kalita, directing them to appear on the next date fixed.
Fixing 16/6/15 for appearance.”
8. It would be apparent from a reading of the impugned order, reproduced above, that the order does not reveal any reason as to the impleadment of the present petitioners as accused persons in the case.
9. Coming to the records annexed with the petition, Annexure C is the copy of Charge-sheet which reveals that in the charge-sheet there were two accused persons, namely, M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. Ambari, Guwahati, Assam and Mr. Jagannath
