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IN THE HIGH COURT OF GAUHATI
Rumi Kumari Phukan, J.
Amitabh Rai Sarma and Others – Appellant
Versus
Central Bureau of Investigation CBI and another – Respondents
Crl.Pet. 964 of 2014 and Crl.Pet. 925 of 2014
Decided On : 29-05-2019
Indian Penal Code, 1860 - Sections 420, 468, 471 and 120 - Prevention of Corruption Act - Section 13 - Criminal Procedure Code, 1973 - Sections 401, 397, 482, 161, 227 and 228 - Soil Conservation Department - By way of present petitions filed read with both petitioners have challenged order of framing charge by learned Special Judge CBI in said case - As challenge is made to common order both petitions are taken up together for disposal allegation in FIR is that a sum of Crore had been received by Soil Conservation department then Divisional Soil Conservation Officer Division under N -C Hills Autonomous Council had been in said post continuously for long years - Out of crore allotted for implementation of works under different schemes works for not even Lacs was reported executed under different schemes and rest of money went thus causing wrongful loss to Government funds of soil Conservation Department of N -C Hills - Held, It has further been held that quashing of charge is an exception to Rule of continuous prosecution - Where offence is even broadly satisfied court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage court is not expected to marshal records with a view to decide admissibility and reliability of documents or records but is an opinion formed prima facie - Considering all entirety of matter and having regard to materials relied by prosecution as discussed and broad probabilities of case and materials brought on record accused-petitioners can be reasonably connected with offence alleged learned trial court is justified in raising serious doubt about complicity of present two accused-petitioners in given facts and circumstances - Which is not compatible with innocence of accused - Once court satisfied about existence of constituents of an offence there is no bar for raising presumption about commission of offence by framing charge - Court at stage of framing charge of Code is not concerned with proof but merely strong suspicion that accused has committed offence - Final test of guilt is not applied at stage of framing charge - Petitions are dismissed.
JUDGMENT :
1. Heard Mr. Z. Kamar, learned counsel for and on behalf of the petitioner (Amitabh Rai Sarma) and Mr. D. Talukdar, learned counsel for and on behalf of the petitioner (Arup Rai).
2. Both petitioners are accused in Special Case No.08/2010 under Section 120(B) read with Section 420/468/471 IPC read with Section 13(2)/13(1)(d) of the Prevention of Corruption Act, pending before the learned Special Judge, CBI (Additional Court No.1), Assam.
3. By way of present petitions filed under Sections 482 read with Section 401/397 CrPC, both the petitioners have challenged the order of framing charge dated 29.04.2014 by the learned Special Judge, CBI, Assam (Additional Court No.1) in the said case. As the challenge is made to the common order, both the petitions are taken up together for disposal.
4. On receipt of a written complain from NIA dated 12.03.2010/23.03.2010 against No. (1) Mohit Hojai, (2) Subrata Hojai, (3) Arup Rai, (4) unknown employee of Soil Conservation, (5) unknown employee of NCHAC and (6) unknown members of DSBG, regarding the allegation of misappropriation of Govt. fund by public servant of Govt. of Assam along with other private persons in NC Hills by way of misuse of official position, criminal misconduct, forgery etc., the said complaint was treated as an FIR and on the request of Govt. of Assam, CBI registered the same as a regular case No. RC/5(A)/2010/SHG dated 13.05.2010, under Sections 120 (B)/420/468/471 IPC read with Section 13(2)/13(1)(d) of P.C. Act against the accused persons including the present two petitioners.
5. The allegation in the FIR is that a sum of Rs.2 Crore had been received by the Soil Conservation department and Arup Rai then Divisional Soil Conservation Officer, Maibong Division under N.C. Hills Authnomous Council had been in the said post continuously for long 17 years. Out of Rs. 2 crore allotted for implementation of works under different schemes works for not even Rs.50 Lacs was reported executed under different schemes and the rest of the money went to the DHFD(J), Mohit Hojai and the EM Subroto Hojai, thus causing wrongful loss to the Government funds of soil Conservation Department of N.C. Hills.
6. After a thorough investigation, CBI submitted 6 (six) charge-sheets before the court of learned Additional Special Judge, CBI. Although, initially 6 cases were registered on the basis of separate charge-sheet (total 6 in number) but subsequently as per direction of the court all the case were amalgamated and merged into Special Case No.08/2010.
7. On appearance of all the accused persons, after furnishing them necessary copies of statement and documents pertaining to the case and after hearing the learned counsel for prosecution and defence counsel on the point of charge, the learned trail court was pleased to frame charge against all the accused persons, namely, (1) Arup Rai, (2) Subrata Hojai, (3) Lakhi Chutia, (4) Amitabh Rai Sarma, (5) Jeevan Ram Hojai and (6) Amit Kumar Das by order dated 29.09.2014.
8. Challenging the aforesaid order of framing charge, two petitioners herein are before this Court. The contentions raised in both the petitions are similar.
9. Mr. Z. Kamar, the learned counsel for the petitioner (Amitabh Rai Sarma) has argued the matter at length and Mr. B. Talukdar, learned counsel also adopted the argument put forwarded by Mr. Kamar. For the sake of brevity, their submissions discussed together.
10. According to learned counsel for the petitioners, the plain reading of 6 charge- sheets submitted by CBI and impugned order dated 29.09.2014, it will prima facie reveal that all the criminal acts have been attributed against other accused persons for commission of the alleged offence and uncontroverted allegations made in the charge-sheet and the materials/evidence submitted by the prosecution does not disclose the commission of any offence warranting framing of charge against the accused-petitioners. It is submitted that not a single prosecution witness has deposed any
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