IMPORTANT POINT
The court ruled that a Special Judge cannot summon additional accused without prosecution sanction, emphasizing the necessity of adhering to statutory requirements under Section 319 Cr.P.C. and Section 19 of the Prevention of Corruption Act.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. A. M. Bora, learned Senior Counsel assisted by Mr. V. A. Choudhury, learned counsel for the petitioners in Crl.Pet No. 633/2012, Crl.Pet No. 634/2012, Crl.Pet No. 635/2012, Crl.Pet No. 648/2012, Crl.Pet No. 649/2012 and Crl.Pet No. 760/2012, Mr. H. K. Sarma, learned counsel for the petitioner in Crl.Pet No. 636/2012 and Crl.Pet No. 637/2012 and Mr. K. H. Choudhury, learned Senior Counsel assisted by Mr. S. K. Muktar, learned counsel for the petitioner in Crl.Pet No. 638/2012. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent.

2. This batch of criminal petitions are taken up together for final disposal as in all these criminal petitions, a common order dated 12.09.2012 passed by the learned Special Judge, Assam in Special Case No. 5/2011 (CID PS Case No.2/2008) is put to challenge.

3. The impugned order was passed in the exercise of power under Section 319 of Cr.P.C., implicating the petitioners as accused in the aforesaid case under Section 120(B)/468/471/409 of IPC.

4. There are three sets of accused in Special Case No. 5/2011.

The first set of accused (ten in number), were sent for trial after obtaining prosecution sanction from the competent authority. These accused are not before this Court.

The second sets of accused are public servants against whom the employer/competent authority refused to grant prosecution sanction. They are five in number and are petitioners before this Court in Crl. Pet. No.635/2012, Crl. Pet. No.636/2012 and Crl. Pet. No.638/2012.

The third categories of accused are also public servants who were neither named in the FIR nor were sent for trial but were summoned as accused by way of the impugned order. They are petitioners before this Court in Crl.Pet.No.637/2012, Crl.Pet./648/2012, Crl.Pet./633/2012, Crl.Pet.634/2012, Crl.Pet./649/2012 and Crl.Pet./760/2012.

5. Before dealing with the arguments of the learned counsels as regards patent illegality in the manner and method of exercise of power under Section 319 of Cr.P.C. by the learned Special Judge and illegal exercise of power by the learned Special Judge to proceed with the trial in the absence of prosecution sanction and conducting an enquiry by calling witnesses on its own, let this Court first record the brief fact leading to the present litigation in the following paragraphs:

I. During the year 1989, altogether 752 persons were alleged to have been illegally appointed as Assistant Teachers against non-existent posts in Dhemaji and North Lakhimpur Districts. Upon learning about the above, the services of such illegal appointees were terminated in the year 1992. However, it was reported that almost 355 terminated teachers were still working, out of which 193 were drawing salaries. Such illegal action being reported by the concerned Deputy Inspector of Schools, which is a huge burden on the public exchequer, the Govt. of Assam in the Education Department vide order dated 09.02.2007 directed the Director of Elementary Education Assam to immediately stop drawl of salary and not to allow those terminated teachers to serve in their respective Schools.

II. In the meantime, it came to the notice of this Court in WP(C) No. 2560/2007 that there was a large-scale misappropriation of public funds in Dhemaji Sub-Division in payment of salary to such teachers appointed illegally. Accordingly, this Court vide order dated 18.06.2007, while expressing willingness to ascertain the position of other sub-divisions and districts, directed the Registry of this Court to list the said writ petition (suo-moto) and accordingly PIL No. 67/2007 came to be registered.

III. As the relevant records regarding appointment or regularization and adjustment of those teachers were not traceable, after the issuance of the show-cause notice by this Court in the said PIL, the Government called upon the CID to investigate the