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2017 Supreme(Megh) 35
IN THE HIGH COURT OF MEGHALAYA
S.R. Sen, J.
Shri Dipak Chakrabarty, Subedar (B & R) - Appellant
Vs.
Union of India - Respondent
W.P.(C) No. 129 of 2017
Decided On : 15-06-2017
For the Petitioner:Mr. H.S. Thangkhiew, Sr. Advocate, Mr. Philemon Nongbri, Advocate
For the Respondents: Mr. K. Paul, CGC.
Specialized cases under specific acts should be tried by designated courts as per the provisions of the respective acts.
Headnote:
Assam Rifles Act - Jurisdiction - Section 55 of Assam Rifles Act - Prevention of Corruption Act, 1988 - Section 25 and 28 of Prevention of Corruption Act, 1988
Fact of the Case:
The petitioner, a Subedar in Assam Rifles, challenged the findings of a Court of Inquiry and the charge sheet issued against him under the Prevention of Corruption Act, 1988. He argued that Assam Rifles had no jurisdiction to try the case under the Prevention of Corruption Act, 1988.
Finding of the Court:
The court found that Assam Rifles did not have the power to try cases under the Prevention of Corruption Act, 1988 and that such cases should be handled by a Special Court as per the provisions of the Act.
Issues: Jurisdiction of Assam Rifles to try cases under the Prevention of Corruption Act, 1988
Ratio Decidendi: Assam Rifles Act does not empower the General Assam Rifles Court to try cases under the Prevention of Corruption Act, 1988. Special Judges appointed under the Prevention of Corruption Act, 1988 are the only ones qualified to try such cases.
Final Decision: The charge sheet was set aside, and the petition was allowed.
JUDGMENT :
S.R. Sen, J.
Heard Mr. H.S. Thangkhiew, learned Sr. counsel assisted by Mr. Philemon Nongbri, learned counsel for the petitioner as well as Mr. K. Paul, learned CGC for the respondents.
2. The brief fact of the petitioner's case in a nutshell is that:
"Petitioner is serving in Assam Rifles, as Subedar (B & R) presently posted with ARC & MC, Laitkor, Shillong. He is aggrieved with the findings of the Court of Inquiry and Summary of evidence, impugned letter dated 18.01.2017 to proceed the petitioner in General Assam Rifles Court and the charge sheet dated 07/21.04.2017. The court of Inquiry has been conducted in gross violation of Assam Rifles Rules, 2010 and on the basis of serious procedural violations, non-examination of complainant, denial of opportunity to the petitioner to cross-examine the complainant, the respondents vide impugned letter dated 18.01.2017 informed the petitioner to proceed in General Assam Rifles Court and issued the impugned charge sheet dated 07/21.04.2017.
The petitioner has been charged under Assam Rifles Act 55 for committing offence punishable under Section 7 of P.C. Act, 1988 is contradictory to the provisions of Rules 44/45 of A.R. Rules/Act. Section 2 (e) & (h) of the Assam Rifles Act, 2006 provides that Assam Rifles Court is a Court of Ordinary Criminal Justice, however, while the petitioner has been issued charge sheet for alleged commission of Civil offence punishable under section 7 of P.C. Act, which is wholly triable by a Special Court, hence the General Assam Rifles Court, being a Ordinary Criminal Court is barred from taking trial for commission of offence punishable under section 7 of P.C. Act. In that context section 25 of P.C. Act, has barred Ordinary Criminal Court to try the offence under P.C. Act.
A purported broadcast was aired in Malayalam Channel Mathrubhumi News and Tehelka.com on 24/25 September, 2014 alleging corruption in Assam Rifles. On the basis of alleged sting operation carried out by a black listed Assam Rifles contractor, Shri C.C. Mathew in connivance with Shri. Shyju Marathumpilly of Tehelka at Imphal, Shillong and Guwahati from 4th August 2014 to 12th August, 2014, a Court of Inquiry was convened by the HQ DGAR vide order dated 29.09.2014 followed by an amendment dated 01.10.2014 and corrigendum dated 07.10.2014 to the convening Order in respect of composition of COI. In the court of inquiry, the prime witness/Complainant, Shri C.C. Mathew did not appear, the convening authority without giving opportunity to cross examine, in utter violation of the mandatory provision of Rule 183 (8) and Rule 49 (2), 47 of Rules, 2010, completed the Court of Enquiry and also recorded the summary of evidences.
An incomplete Court of Inquiry has no merit to recommend the investigation to next level for conducting of Summary of evidence. The respondents in deliberate violation of Rules 44, 45 (ii), Rule 183 (8) during COI and Rule 49 during SOE proceedings have proceeded to convene General Assam Rifles Court and issued the impugned charge sheet dated 21.04.2017 which is not permissible in law.
The petitioner after receipt of the charge sheet dated 07/21.04.2017 has submitted representation dated 29.04.2017 to hand over correct CD and five documents. He submitted another representation dated 11.05.2017 giving previous correspondence reference with the request to cancel the charge sheet and to acquit from the charges.
As a result of the serious lapses and violation of rules, principles of natural justice in the court of inquiry, the respondents are not legally permitted to proceed against the petitioner in General Assam Rifles Court vide impugned letter dated 18.01.2017 and has issued the impugned charge sheet dated 07/21.04.2017.
Hence this Writ Petition."
3. The learned Sr. counsel appearing on behalf of the petitioner had submitted that the petitioner is serving in the Assam Rifles and charges under the Prevention of Corruption Act, 1988 have been framed against him. He further conte
