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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND

ARUNACHAL PRADESH)

Criminal Revision Petition No.186 of 2015 Director , Central Bureau of Investigation through head of Branch, Anti Corruption Branch, Bora Commercial Complex, Narengi Tiniali, Guwahati-781 026 (Assam) ……… Petitioner Advocate for the petitioner : Mr. P.N. Choudhury, S.C.CBI In Crl. Revn. Petition No.186/15 -Versus-

1. Tarun Chandra Goswami (A-1) Son of late Bipin Chandra Goswami, (Employee Donyi Polo Mission, Itanagar at the relevant time, presently retired) R/o Vill- Khelmati, North Lakhimpur, Assam,

2. Jayanta Debroy (A-3) S/o late Jyotish Ranjan Debroy (Employee Donyi Polo Mission, Itanagar at the relevant time, presently retired) permanent Add: R/o North A/P, KNC Complex, Opp. Bora Service, Ulubari, Guwahati, Dist- Kamrup (M), Assam- 781 007. ……Respondents

Advocate for the opposite : Mr. M.Choudhury, Advocate Parties in Crl.Revn.No.186/15 Ms. M. Kumari, Advocate

Criminal Petition No. 446 of 2015 1.Tshering Narbu Bhutia, Son of late Uchen Tshering Bhutia, Resident of Methibari (Sarbari)

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PO-Sukna, Pin-734009 PS-Pradhan Nagar, Siliguri,Dist-Darjeeling, (Pachim Banga),the then Assistant Provident Fund Commissioner (oic), Employees Provident Fund Organisation, Sub-Regional Office, Tinsukia.

2.Nava Kumar Hazarikia, Son of late Umesh Chandra Hazarika, Resident of Namak Godwon, Sripuria, PO & PS- Tinsukia, Assam, the then Assistant Accounts Officer, Employees Provident Organisation, Sub-Regional Office, Tinsukia (presently Accounts Officer in the said office)

3.Sri Subodh Chandra Rava Son of late Gouri Kanta Rabha,

Resident of Fatasil Datal Para (Natun Basti) PO-Dhiren Para, P.S. Fatasil Ambari, Guwahati- 781025, District- Kamrup, Assam, the then Section Supervisor, Employees Provident Fund Organisation, Sub-Regional Office, Tinsukia (presently Section Supervisor, Employees Provident Fund

Organisation, Regional Office, Guwahati) 4. Muhiram Sonwal,S/o Late Moheswar Sonwal, Resident of Tinsukia village, PO-Lalmati(via Borborua), PS-Barbora, District-Dibrugarh, Assam, the then dealing Assistant, Employees Provident Organisation, Sub-Regional Office, Tinsukia, (presently senior social security assistant (UDC) Employees Provident Fund Organisation, Sub-Regional Office, Tinsukia). …Petitioners

Advocate for the petitioners : Mr. B.M. Choudhury, Advocate In Crl.Petition No.446/15 Mr. U. Choudhury, Advocate

-vs- 1.Tarun Chandra Goswami Son of Bipin Chandra Goswami, Resident of village-Khelmati,

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District- North Lakhimpur, Assam (alternatively Of Town Bantow, District-Lakhimpur, Assam.

2. Jayanta Debroy (A-3) S/o Jyotish Ranjan Deb Roy Presently residing at North A/P, KNC Complex, Opp. Bora Service, Ulubari, Guwahati, (permanent resident of vill-Padmapur, Dharmanagar, Tripura)

3.Central Bureau of Investigation, Represented by its Head of Branch, CBI, ACB, Guwahati. …Respondents

Advocate for the opposite : Mr. M.Choudhury, Advocate Parties in Crl.PetitionNo.186/15 Ms. M. Kumari, Advocate

Mr. P. N. Choudhury, S.C.CBI.

-versus- Criminal Petition No. 526 of 2015

1.Shri Pramod Chandra Kaltia S/o Kamakhya Ram Kalita, resident of Tarun Nagar, ABS, GS Road, PS-Dispur, Guwahati-5, Kamrup (M),Assam. …Petitioner

Advocate for the petitioner : Mr. S.K.Talukdar, Advocate In Crl.Petition No.526/15

-vs- 1.The State, represented by the CBI. 2. Jayanta Debroy (A-3)

S/o Jyotish Ranjan Debroy Presently residing at North A/P, KNC Complex, Opp. Bora Service, Ulubari, Guwahati, (permanent resident of Padmapur,Dharmanagar Tripura),

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…..Respondents.

Advocate for the opposite : Mr. M.Choudhury, Advocate Parties in Crl.Petition No.526/15 Ms. M. Kumari, Advocate

Mr. P. N. Choudhury, S.C.CBI. BEFORE HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

Date of hearing : 15.6.2016 Date of Judgment : 22.07.2016

JUDGMENT & ORDER (CAV)

All above petitions have been preferred against the impugned order dated

2.2.2015 passed by the learned Special Judge, CBI in Special Case No. 34 of 2006

wherein by invoking the provision of Section 319 Cr.P.C., the learned Court has

newly added six accused persons in the said case namely, 1) Tshering Narbhog

Bhutia, 2) Nava Kumar Hazarikia, 3) Subhod Chandra Rabha, 4) Muhiram Sonowal,

5) Promod Chandra Kalita and 6) Manabendra Chaudhury, holding that the

aforesaid six persons shall also be tried together with the other accused already

facing trial for the offences under Sections 120(b) /406/408/34 IPC and summoning

them to face the trial in the aforesaid case.

2. Being aggrieved with the aforesaid order, the four newly impleaded accused

persons namely, 1) Tshering Narbhog Bhutia, 2) Nava Kumar Hazarika, 3) Subhod

Chandra Rabha, 4) Muhiram Sonowal have preferred the Criminal Petition No.

446/2015 .

One another newly impleaded accused Promod Chandra Kalita has preferred

the Criminal Petition No. 526/2015.

The prosecution agency i.e. the Central Bureau of Investigation also

challenged the impugned order by way of Criminal Revision Petition No. 186/2015.

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As all the petitions have been challenged the same order, passed by the

learned Special Judge, and the facts related to the same story, so all the petitions

are taken together for disposal by this common judgment and order.

3. A written complaint was lodged on 25.9.2003 by Shri P. C. Patir, the then

Deputy Director (Vigilance) Employees Provident Fund Organisation (in short EPFO),

on the allegation that during the year 2000-2001 nine fraudulent/fictitious Provident

Fund settlements in respect of members of M/s Donyi Polo Mission, Itanagar claims

were filed in EPFO Sub-Regional Office, Tinsukia each about two lakhs in respect of

persons who, were not employees. The claims were settled and payment was made

in respect of such fraudulent claims thereby cheating the EPFO. On investigation

made by zonal Vigilance Directorate it was revealed that there was nexus between

the EPFO and the establishment of M/s Donyi Polo Mission, Itagagar, UCO Bank

Itanagar, State Bank of India, Angarkhowa Branch. As per the aforesaid complaint

while settling those nine claims, Sub-Regional Office, EPFO, Tinsukia did not check

the receipts of the contribution of those nine claims. Though as per the standing

instruction issued by the Corporate Headquarter, Assistant Accounts Officer (AAO)

were authorised to pass claims upto 50 thousand only but in the said claims the

concerned AAO Sri N. K. Hazarika passed the claim beyond Rs.50,000/- as per verbal

as well as written order passed by the then Assistant Provident Fund Commissioner,

Sri T. N.Bhutia, whereas it was not within his power. It was also alleged that Sri

Manabendra Choudhury, AAO issued cheques beyond Rs.50,000/- in respect of final

settlement even though he was not entitled to the same. In the process of such

settlement of nine fictitious claims a sum of Rs.19,39,848/- was siphoned on the

basis of forged and fictitious papers, whereas there was no money in the aforesaid

fraudulent PF A/C.

4. The aforesaid complaint was lodged against T.N.Bhutia, the then Assistant

Provident Fund Commissioner, SRO Tinsukia, Sri Lokeshwar Barua, the then

Assistant Provident Fund Commissioner, SRO Tinsukia, Sri Manabendra Choudhury,

AAO, EPFO, Tinsukia, unknown officials of UCO Bank & Vijaya Bank, Itanagar,

unknown officials of SBI, Angarkhowa Branch, Sri T.C. Gowami, private person and

M/s Donyi Polo Mission, Itanagar as accused in his complaint. The complainant

requested the Superintendent of Police, Central Bureau of Investigation, office of

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Superintendent of Police, Anti Corruption Branch, Guwahati to cause an investigation

into the matter.

(ii) Upon receipt of the said complaint, a regular case was registered by the

C.B.I. under Section 120 B/420/467/468/471 IPC read with Section 13 (1) (d) of

Prevention of Corruption Act, 1988.

(iii) After completion of investigation of the case, Charge-Sheet of the case was

submitted bythe investigating officer of the case on 27.06.2006 against Sri T.C.

Goswami (Ex-employee of Donyi Polo Mission, Itanagar), Sri Chakradhar Nath (ex-

employee of UCOI Bank, Itanagar ) and Sri Jayanta Debroy (Ex-employee of Donyi

Polo Mission, Itanagar) under Sections 120 B/419/420/465/468 and 471 IPC read

with Section 13(2) and 13(1)(d0 of the Prevention of Corruption Act, 1988. The

other named-accused in the complaint, particularly, T.N. Bhutia, Sri Lokeswar

Baruah and Sri Manabendra Choudhury all are officials from the EPFO, Tinsukia

were not sent up for trial.

(iv) A corresponding Special Case being Special Case No.34/2006 was registered

and summons were issued by the learned Special Judge, CBI, Assam to those

accused persons sent up for trial. On appearance charges were framed under

Sections 419/468/465/471/120B of the Indian Penal Code against Tarun Ch.

Goswami, charges were framed under Section 420/468/465/471/120B of the IPC

and under Section 13(1) (d) read with Section 13(2) of P.C.Act against Jayanta Deb

Roy and Chakra Dhar Nath. The learned trial Court, after framing the charges, read

over and explained the charges to all above accused persons to which they

pleaded not guilty and claimed to be tried.

(v) At the initiation of the trial of Special Case No.34/2006, a Petition

No.3154/2006 dated 4.11.2006 was filed for and on behalf of the accused Sri

Jayanta Debroy stating inter alia that on examination of investigating agency’s paper

and documents it reveals that the real offenders have not been charge-sheeted and

the learned trial Court after taking cognizance of the offences issues process against

the only three persons and hence it was prayed that the learned trial Court may be

pleased to fix a date for hearing to issue process under Section 204 Cr.P.C. against

the real offenders who are specifically implicated on the case. The said petition was

not disposed of as it was filed before the trial commenced.

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5. During the course of the trial prosecution examined 28 witnesses and on the

basis of evidence brought on record, one another accused Tarun Goswami filed an

application before the trial Court being Petition No. 931/2014 dated 3.6.2014 with a

prayer to implead the accused persons namely, T.N.Bhutia, Sri N. K. Hazarika, Sri

Manabendra Choudhury, Sri Muhiram Sonowal and Sri Subhod Rabha, employees of

EPFO Office, Tinsukia, by invoking the power under Section 319 Cr.P.C.

6. That CBI filed a reply to the Petition filed by aforesaid accused Jayanta Deb

Roy dated 4.11.2006 submitting inter alia that the officials of EPFO Tinsukia ought to

have diligently check and verify the authenticity of document but they have failed to

carry out their official duty diligently, for which CBI has recommended disciplinary

proceeding against those officials of EPFO Tinsukia, viz. namely Sri T.N.Bhutia, Sri N.

K. Hazarika, Sri Muhiiram Sonowal and Sri Subhod Rabha to impose major penalty.

No action was recommended against other two officials namely Sri L. Baruah and Sri

Manabendra Choudhury, who have already retired.

7. In reply to the petition so filed by another accused Sri Tarun Goswami, the

CBI in its reply dated 14.7.2014 submitted inter alia that there is nothing in the

petition filed by the accused Sri Tarun Goswami showing any evidence brought in

examination in chief implicating any person who has not been made accused in that

case nor any incriminating evidence against any person who has not been made an

accused in the charge-sheet. Further CBI contends that processing of claims by PF

officials on receipt of necessary papers as regards claims in their office does not

indicate any criminality in discharging their duties. Accordingly, it has been

submitted that the prayer of the accused Mr. T Goswami to proceed against the PF

officials is not based on any cogent evidence and liable to be dismissed.

8. After hearing both sides, the above two petitions were disposed of by the

learned trial Court by its impugned order dated 2.2.2015, the concluding/operative

part of the order is reproduced below:

“ … … … … … … … … … … … … … … … … … … … … … … … .In the instant

case in hand, the material allegation, as it is reflected in the complaint

lodge dby P.C. Patir, Deputy Director (Vigilance), EPFO, Kolkata is

that T.N. Bhutia, L. Baruah-both the then Assistant Provident Fund

Commissioners, Tinsukia; Manabendra Choudhury, Assistant Accounts

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Officer of the EPFC, Sub Regional Office, Tinsukia, Assam;

T.C.Goswami and others have defrauded the EPFO, to the extent of

Rs.19,39,848/- by fraudulently and dishonestly settling the PF claims

of the nine employees of M/s Donyi pollo Mission of Itanagar, during

the period of 2000-02. It is pertinent to record here, that in this case,

charges are already framed against the accused Tarun Chandra

Goswami, Chandradhar Nath and Jayanta Deb Roy for offences u/secs

120 B, 420.468,419 IPC an sec 13(2) read with section 13(1)(d)of the

P.C.Act, 1988.

I have perused the materials on record very carefully and

cautiously. The basic contention of the accused-petitioners is that the

PF officials of the EPFO, Tinsukia, fraudulently and dishonestly did not

verify the records in a proper manner, with due care, diligence and

attention and consequently in the nine instances, irregular

settlements were made, thereby siphoning off a large amount of

public money.

After going through the materials on record, what I find is that

besides the present accused, more particularly, against whom the

charges are already framed in connection with this case; there are

other following accused namely, 1) T.N.Bhutia, the then Assistant

Provident Fund Commissioner, Tinsukia, 2) Manabendra Choudhury,

the then Assistant Account Officer, Tinsukia 3) N. K. Hazarika, the

then Assistant Account Officer, Tinssukia, 4) S.C.Rabha, the then

Section Supervisor, Tinsukia,5) P.C.Kalita, the then Section

Supervisor, Tinsukia and 6) M. Sonowal, the then Dealing Assistant, in

the office of the EPFO Tinsukia were responsible for irregular

settlement of the claims in connection with this case. They were

evidently left out and that they are not arrayed , as accused in

connection with this case. Their involvement in the matter of irregular

settlement of PF claims,in those nine cases, in my considered view,

cannot be reasonably denied, as the materials on record disclosed.

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That being the position, invoking the power conferred u/s 319

Cr.P.C., I am of the considered view that the above referred 6 (six)

officials of the EPFO, Tinsukia may also be tried together with the

present accused, for offences u/s 120B/406/408/34 IPC.

Accordingly, they may be summoned for their trial together

along with the present accused, fixing 03.03.2015 for their

appearances.”

9. The aforesaid order has been challenged in these three petitions as

aforesaid. It may be noted here that one of the newly impleaded accused Sri

Manabendra Choudhury has not challenged the aforesaid order and the newly

impleaded accused Sri T.C. Kalita was a witness in the aforesaid case and he has

already given his evidence as PW 7 in course of trial.

10. In the Criminal Petition 446/2015, basic grievance raised by the four

petitioners is that the trial Court has exercised the power under Section 319 Cr.P.C.,

there being no any evidence against the accused petitioner regarding the

commission of offence as alleged. The mere fact that there was some irregularity

towards such payment of PF amounts does not necessarily make the petitioners

liable for criminal offence. The finding of the trial Court is bad in law as it bears no

discussion as to the materials on the basis of which the learned Court arrived at such

findings. Such a finding is violative of guideline laid down by the Hon’ble Supreme

Court in Hardeep Singh –vs- State of Punjab, reported in (2014) 3 SCC 92. Another

contention of the accused petitioners is that impleadment of the accused petitioners

and summoning them is also bad in law as the petitioners being the public servant,

sanction for prosecution is sine qua non for taking cognizance of offence against

public servant discharging official duties.

11. In the criminal revision petition No. 186/2015 the CBI has taken almost the

similar grounds as in criminal petition no. 446/15. The CBI has taken grounds that

the accused persons already facing trials cannot make any prayer before the trial

Court to invoke the provisions of Section 319 Cr.P.C., to summon others as accused

to face a trial. It has been contended that a trial Court fail to appreciate that the

power under Section 319 can be exercised at the stage of completion of

examination-in-chief and the Court does need to wait till the said evidence vested in

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cross-examination. It contends that, the instant case, there was nothing in the

examination-in-chief to implicate those persons for invoking the power under Section

319 Cr.P.C. Thus the degree of satisfaction laid down in the Hardeep Singh Case

(Supra) has not been followed by the learned trial Court. Further contention is that

the learned trial Court failed to appreciate that FIR is not a substantive piece of

evidence and CBI after completion of investigation has submitted Charge-sheet only

against three accused persons and the other accused (presently impleaded) were

not Charge-sheeted as no mens rea was made out against them and the learned

trial Court has most inadvertently aided the accused persons in derailing the trial.

Accordingly, prayer has been made to quash the impugned order and direct for

proceeding of trial based on the case to be made out by the prosecution.

12. The criminal petition no. 526/2015 has been preferred by newly impleaded

accused Sri Promod Chandra Kalita (who already appeared as PW 7 in the said

case). The challenge made by the petitioner against the impugned order on the

grounds that the said impugned order is perverse and based on no evidence against

him. It has been assailed that though the petitioner was Section Supervisor of the

office of Sub-Regional Office, there was no allegation against him neither in the FIR,

Charge-sheet nor any other material including the evidence before the learned trial

Court suggesting his complicity with the offence. The learned Court below while

invoking the power U/S 319 has relied upon the prosecution witness PW 7 (the

petitioner himself) PW 5 (Mr. P. Patir/ complainant), PW 9 (Moheswar Boro), PW 16

(Pijush Roy), PW 22 (Bipin Saikia) all of them have categorically stated in the cross-

examination that one Subudh Chandra Rabha processed the alleged fictitious nine

claims / forms as a Section Supervisor, facilitate the release of payment thereof.

The learned Court merely on assumption that since the petitioner was also a section

Supervisor, he might have also had been involved in the commission of the alleged

offence has impleaded him, without there being any evidence, hence such order is

unsustainable. The Hon’ble Apex Court in Hardeep Singh Case (surpa) has

categorically held that prior to invoking power under Section 319 Cr.P.C., evidence

more than prima facie case (for framing charge) is required. The learned trial Court

committed serious error in impleading the petitioner as an accused by the

impugned order, since there was no material/evidence or record to implicate his

guilt, even prima facie. Thus it has been submitted that the impugned order suffers

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from non application of mind rendering the same as perverse and illegal and should

be set aside.

ARGUMENT IN THE CASE OF CRIMINAL PETITION NO.446/2015

13. Mr. B. M. Choudhury, learned counsel appearing for the petitioner in Criminal

Petition No. 446/2015 has strenuously argued on the subject by referring to the

grounds mentioned above and has submitted that the learned trial Court has failed

to apply its judicial mind while arriving at the decision on the prayer of accused

persons that allowing such a prayer at the belated stage where the prosecution has

almost completed its evidence will further prolong the delay where is the occurrence

of 2003. It has also been highlighted that the learned trial Court recorded no reason

so as to reach the conclusion as to the complicity of the accused petitioners with the

alleged offence as indicated in para 106 of the judgment of Hardeep Singh (supra).

As per the mandate of said judgment the learned trial Court has to record its

satisfaction about more than a prima facie case, prior to invoking the provisions of

Section 319 Cr.P.C. It is further contended that invoking extra ordinary power U/S

319 Cr.P.C. on the prayer of accused facing trial despite having no evidence,

attributing any criminality or mens rea on the part of the impleaded accused persons

has damaged the prosecution case and causing prejudice to the prosecution, at the

fag end of the trial, which get some escape route to the respondent nos. 1 and 2.

Another contention raised by the learned counsel for the petitioner that the petition

no. 931/2014 was filed by another accused on the basis of cross-examination of PW

2, PW 3, PW 5, PW 7, PW 9, PW 20, PW 22 and PW 23 and the same are rebuttal of

the examination of the chief. Even prosecution filed its reply objecting against the

petition and submitted that there was only negligence or lack of diligence amounting

to official irregularity but not mens rea and disciplinary action was recommended

against EPF officials. The learned counsel Mr. Choudhury referred the decision of

Rakesh –vs- State of Haryana, reported in AIR 2001 SC 2521, wherein it has been

held that, “what should be considered for invoking powers U/S 319 Cr.P.C. is the

material available during examination-in-chief because the cross examination is

rebuttal of deposition”.

14. The decision rendered in Hardeep Singh (supra) also relied by the learned

counsel for the petitioner and has submitted that the learned trial Court has failed to

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appreciate the direction so given in the aforesaid case that power U/S 319 must be

exercised sparingly, that Court cannot formed an opinion. Strong and cogent

evidence is required against the persons sought to arrayed as accused, the power

should not be exercised in a casual and cavalier manner and reasons to be recorded

while invoking such power. According to the learned counsel, the learned Court

formed the opinion despite having no strong and cogent evidence, without recording

any reason and exercise the extra ordinary power in casual and cavalier manner. In

this context decision of Apex Court in the case of Markio Tado –vs- Takam Sorang,

reported in 2013 (7) SCC 524 has been referred wherein Hon’ble Apex Court has

strongly viewed the attitude of the Subordinate Courts for ignoring the settled

positions of law.

15. Another decision of Saradjit Singh –vs- State of Punjab, reported in 2009

(16) SCC 46 has been referred by the learned counsel for the petitioner wherein it

has been held that merely first informant or another witness uttered name of other

person, power U/S 319 Cr.P.C. cannot be invoked. Further limb of argument rest

upon the fact that the present petitioner cannot be tried together with the private

respondents, being the petitioner is public servant and offence U/S 406/408 are not

applicable to them. In case of public servant sanction of prosecution U/S 19 of the P.

C. Act is sine qua non prior to taking cognizance of offence against such public

servant.

ARGUMENT IN THE CASE OF CRIMINAL PETITION NO.186/2015

16. Mr. P. N. Choudury, learned senior retainer counsel for CBI appearing for the

petitioner in this case (as well as respondent in Criminal Petition No.526/2015)has

also based his argument relying upon the Hardeep Singh case (supra) and has

submitted that learned Court has not recorded the satisfaction in terms of the

aforesaid judgment of the Apex Court prior to invoking the provisions U/S 319

Cr.P.C. which is bad in law. Further the learned trial Court failed to appreciate that

during investigation no cogent evidence was collected by the investigating officer to

robe the present impleaded accused petitioner with the criminal liability for which

they were not forwarded for facing criminal trial, rather they have recommended for

departmental proceeding for their irregularity towards the payment of P F claims.

Assailing the impugned order of the learned trial Court it has been submitted that

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such an order without any cogent reason, that too without any cogent evidence and

after long delay (after examination of 27 witnesses), passed on the prayer of the

accused facing trial is bad in law and liable to be set aside. That apart, such order

will seriously caused prejudice to the case of prosecution and destructive of

prosecution story.

ARGUMENT IN THE CASE OF CRIMINAL PETITION NO.526/2015

17. For and on behalf of the accused petitioner Sri P. C. Kalita, the learned

counsel Mr. S. K. Talukdar has vehemently argued that the impugned order is bereft

of reasons for impleading the accused petitioner, whereas he has already appeared

as a witness (PW 7). The evidence so far recorded is totally silent about complicity of

the present petitioner with the offence alleged. The petitioner was a Section

Supervisor at the relevant time but the evidence of PW 16, PW 22 apart from his

own evidence as PW 7 clearly indicates that he never dealt with the above nine

fictitious claims and it was another Section Supervisor Subudh Rabha has dealt,

processed the above nine fictitious claims and as such he cannot be roped with any

such criminal liability simply because he was an employee in the said EPF Office at

the relevant time. The learned trial Court has failed to appreciate the aforesaid

aspects for which the impugned order as regards him liable to be set aside.

ARGUMENT ON BEHALF OF RESPONDENTS T. C. GOSWAMI AND JAYANTA DEB ROY

18. Heard the learned counsel Mr. M. Choudhury for and on behalf of Mr.

T.C.Goswami and Ms. Manuruma Kumari for and on behalf of Mr. Jayanta Deb Roy

at length. In the elaborate argument the learned counsel for the respondent T. C.

Goswami has focused various facets of the case including factual aspects of the

matter and the relevant provisions of law, countering all the limbs of arguments

advanced by the learned counsel for the petitioner in the aforesaid three cases. It

has been contended that the officials of EPFO was involved in settling the aforesaid

nine claims by passing orders without jurisdiction and more particularly where there

was no money deposited against those P F Accounts. The P. F. officials did not verify

the records of P F Office and in collusion with the bank officials and officials from

M/s Donyi Polo Mission, Itanagar fraudulently misappropriated a sum of Rs. 19, 38,

848.00 for EPFO Tinsukia. In this context attention of the Court has been drawn to

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the evidence including the cross-examination of several witnesses recorded by the

trial Court. For the sake propriety some portion of evidence are referred below:

An Accounts Officer of Regional Provident Fund Office Sri Bikash Ranjan Dhar

as PW 2 has stated that Accounts Officer in no circumstances can sanction and

release an amount beyond Rs.50,000/- to employee towards P. F. settlement. Such

record of P. F. claim remains in the custody of EPFO.

P.W.5 Sri P.C. Patir, Dy. Director Vigilance, EPFO has stated in cross-

examination stated that there was criminal nexus amongst the officials of the EPFO

and the establishment of M/s Donyi Polo Mission, Itanagar and UCO Bank Itanagar,

SBI Angarkhowa Branch. He further elaborate his evidence that such P. F. claims is

to be examined first by the Dealing Assistants of the office, thereafter Section

Supervisor as well as Accounts Officer to ensue the correctness. He further stated

that it is the duty of the EPFO officials to maintain the demand collection balance

register (in short DCB) but it was not properly maintained. That apart official of Sub-

regional office (SRO) had to ensure that the amount was available in the particular

account. During the settlement of the aforesaid claims sanction power Assistant

Accounts Officer (AAO) Sri N K Hazarika was Rs.50,000/- but on the verbal

instruction of Sri T. N. Bhutia the then Assistant Provident Fund Commissioner, Sri

Manobendra Chowdhury AAO issued cheque beyond Rs.50,000/- in respect final

settlement of the above claims even though they are not empowered. In course of

investigation by him he observed that fraudulent siphoning of public money was a

pre-concerted plan between EPFO Establishment and Bank.

P.W.7, Sri P. C. Kalita stated that the nine claims were put up by the Dealing

Assistant Muhiram Sonowal, checked by Section Supervisor Subudh Ch. Rabha,

passed by N. K. Hazarika, cheques were signed by Sri T. N. Bhutia and Manobendra

Chowdhury. It is also stated in his cross examination that Muhiram Sonowal, Subudh

Ch. Rabha, N. K. Hazarika, T. N. Bhutia and Manobendra Chowdhury were involved

in settling the nine claims.

Evidence of P.W.9 Maheswar Boro, Section Supervisor, Cash Branch EPFO

Guwahati, PW 16, Pijush Roy, SSA EPFO, PW 17 R.D.Kanungo, Enforcement Officer,

EPFO, PW 20 Ranjit Dutta SSA, EPFO, PW 22 Bipin Saikia Enforcement Officer, EPFO

had stated in their evidence that it is the duty of officials of EPFO, more particularly

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the Accounts Section of EPFO to verify and re-verify the P.F. claims and during the

said period aforesaid officials namely Muhiram Sonowal, Subudh Ch. Rabha, N. K.

Hazarika, T. N. Bhutia and Manobendra Chowdhury were working in the Accounts

Section and were involved in settling the above claims.

19. It has been contended by the learned counsel Mr. M. Choudhury for the

respondents that the aforesaid evidence on record is sufficient to suggest the

complicity of the accused petitioners with the alleged offence. Such a laxity on the

party of the accused petitioner cannot be relaxed by the investigating officer as a

mere irregularity on the part of EPFO officials. Such a serious matter of P. F.

settlement that too more than Rs.19 lakhs cannot be materialized unless connivance

of the EPFO officials, where there was no money in the aforesaid accounts. At the

time initial investigation by PW 5 who was a Vigilant Director, he found serious

disparity as regards amounts mentioned in the P. F. claims, DCB register, non fill up

of forms in proper manner and other several discrepancies while settling the claims.

Even the officials mentioned above has acceded their limits of sanctioning power and

issued cheques beyond their limits. On the face of such matters on record as well as

evidence from the officers of their own establishment of EPFO how the

CBI/Prosecution Agency can exonerate such officials, has been challenged by the

respondents by way of the petition as mentioned above. It has been vehemently

contended that such a resistance by the prosecuting agency towards impleadment of

above five petitioners is not at all maintainable. However, learned counsel has

clarified that they have never prayed for impleament of P.C. Kalita in their petition in

view of lack of evidence about his involvement towards settlement of above fictitious

claims. It is also pointed out that the said Mr. P. C. Kalita neither implicated in the

FIR nor in the Charge-sheet and there is dearth of evidence about his complicity in

the alleged offence.

20. To bolster his argument several decisions have been relied by Mr. M.

Choudhury which are as follows:

(a) 2007 (1) SCC 1 (Prakash Singh Badal & anr-vs- State of Punjab and

ors.

(b) 2007 (14) SCC 783 ( Paul Varghese –vs- State of Kerala & another.

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(c) AIR 1956 SC 44 (1) (Matajog Dobey –vs- H.C. Bhari)

(d) 1998 (1) SCC 205 (Suresh Kumar Bhikanchand Jain –vs-Pandey Ajay

Bhusan & ors)

(e) 2008 (9) SCC 140 (Bholuram –vs- State of Punjab & anr)

(f) 2014 (3) SCC 92 ( Hardeep Singh –vs- State of Punjab & ors)

21. I have considered the submissions of the learned counsel and gone through

the relevant citations submitted above. Also considered the submissions of the

learned counsel Ms. M. Kumari, appearing on behalf of respondent Jayanta Deb Roy,

who has drawn the attention to the complaint (annexed with the Charge-sheet) so

filed by the complainant PW 5, on the basis of which the investigation was started,

which is very much crucial to decide the complicity of the concerned officials of

EPFO. As has been mentioned above by the learned counsel for the respondents the

aforesaid investigation so made by the PW 5 has suggested a complicity of the

aforesaid petitioners (except P.C.Kalita) while settling the fictitious amounts, there

being no such claimants and no such amounts deposited in the bank. Moreover, it

has also been contended that Jayanta Deb Roy was not involved in the aforesaid

settlement, but said contention at this stage cannot be challenged by the respondent

Jayanta Deb Roy, as he has not challenged the charge which was framed far back

against him and now he has been arrayed as a respondent only because he has

moved the petition for impleadment of other persons as accused along with them.

22. I have given due consideration to the submissions by respective parties and

also gone through the documents and citations. It is to be noted that apart from

other citations both the parties basically relied upon the recent decision of the

Hon’ble Supreme Court in the case of Hardeep Singh (supra) which is very crucial for

decision of the matter in hand. For the sake of brevity, let us discuss the

contentions so raised by the parties in the above three petitions and the

observations of Hon’ble Supreme Court as regards the law for invoking the extra

ordinary power of Section 319 Cr.P.C.

23. As regards the ground taken to the effect that accused cannot move a

petition praying for invoking power U/S 319 Cr.P.C., the observation made by the

learned Supreme Court in Bholuram –vs- State of Punjab and another, reported

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2008 (9) SCC 142 can be referred. In paragraph 22 of the judgment it has been held

that “ it is settled law that power U/S 319 Cr.P.C. can be exercised either on an

application made to the Court or by the Court suo moto. In the discretion of the

Court to take an action under said Section the Court is extracted to exercise the

discretion judicially and judiciously having regard to the facts and circumstances of

each case. In para 25 of the judgment it is further hold that it no where states that

such an application can be filed by a person other than the accused. It also does not

prescribed any time limit within which such application should be filed. It is also

held that power U/S 319 for the Code can be exercised by the Court sou moto or on

an application by someone including accused already before it, If it is satisfied that

any person other than the accused he is to be tried together with the accused and

accordingly it is held that the learned Magistrate has power and jurisdiction to

entertain application filed by the appellant/accused U/S 319 of the Code and issue

summons to the respondent no.2 by adding him as an accused. The said order could

not be said to be illegal, unlawful or otherwise objectionable.

24. The aforesaid observations answered two contentions raised in these

petitions that even an accused can prefer a petition U/S 319 Cr.P.C. and there is no

time limit for preferring such petition and as such ground of delay is not a bar to

entertain such petition.

25. In Hardeep Singh –vs- State of Punjab & ors, reported in 2014 (3) SCC 92

has almost discussed all the facets of power U/S 319 Cr.P.C. when the same can be

exercised. The Apex Court amongst others also discussed following points

(i) what is the stage at which power U/S 319 Cr.P.C. can be exercised.

(ii) Whether the word ‘evidence’ is used in Section 319 Cr.P.C. could only

mean evidence tested by cross-examination or can exercise the power

under the said provision even on the basis of statements made in

examination-in-chief

(iii) Whether the word ‘evidence’ is used in Section 319 Cr.P.C has been

used in comprehensive sense and includes the evidence collected

during the investigation or the word ‘evidence’ is limited to the

evidence recoded during trial

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(iv) What is the nature of the satisfaction required to invoke the power

under Section 319 Cr.P.C. and whether the power under Section 319

Cr.P.C. cn be invoked if the court is satisfied that the accused

summoned will in all likelihood be convicted and

(v) Does the power under Section 319 Cr.P.C. extend to persons not

named in the FIR but not charged or who have been discharged.

26. While discussing the point (i), the Apex Court held in paragraphs

25,34,40,47,55 and 57 of the said judgment held that even the word “course”

occurring in Section 319 Cr.P.C., clearly indicates that the power can be exercised

only during the period when the inquiry has been commenced and is going on or the

trial which has commenced and is going on. It covers the entire wide range of the

process of the pre-trial and the trial stage. The word “course” therefore, allows the

court to invoke this power to proceed against any person from the initial stage of

inquiry upto the stage of the conclusion of the trial. The court does not become

functus officio even if congnizance is taken so far as it is looking into the material

qua any other person who is not an accused. The word “course” ordinarily conveys a

meaning of a continuous progress from one point to the net in time and conveys the

idea of a period of time; duration and not a fixed point of time”(para 40).

27. The second point regarding word ‘evidence’ used in section 319 (1) Cr.P.C.

the Hon’ble Supreme Court discussed in paragraphs 59,84,85,88,89,90,91 and 92 of

the judgment and held that the court can exercise the power under Section 319

Cr.P.C. even at the stage of completion of examination-in-chef and the Court does

not need to wait till the said evidence is tested on cross-examination. The Apex

Court nowhere in the said judgment mentioned that statement made in cross

examination cannot be considered as evidence to invoke power under Section 319

Cr.P.C. In paragraph 92 of Hardeep Singh (supra) held that “Thus, in view of the

above , we hold that power under Section 319 Cr.P.C.can be exercised at the stage

of completion of examination in chief and court does not need to wait till the said

evidence is tested on cross-examination for its is the satisfaction of the court which

can be gathered from the reasons recorded by the court, in respect of complicity of

some other person(s), not facing the trial in the offence”.

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28. While deciding the point no. (iii) whether the Whether the word ‘evidence’ is

used in Section 319 Cr.P.C has been used in comprehensive sense, the Hon’ble Apex

Court discussed the said issue in paragraphs 59,45,84 and 85 of the judgment and

held that

“ the word evidence’ in section 319 Cr.P.C. contemplates the evidence

of the witnesses given in the court (Para 75). “The word ‘evidence’

therefore has to be understood in its wider sense both at the stage of

trial and, as discussed earlier even at the stages of inquiry, as used

u/s 319 Code of Criminal Procedure The court, therefore, should be

understood to have the power to proceed against any person after

summoning him on the basis of any such material as brought forth

before it. The duty and obligation of the court become more onerous

to invoke such powers cautiously on such material after evidence has

been led during trial.”

“80. In view of the discussions made and the conclusion drawn

hereinabove, the answer to the aforesaid question posed is that apart

from evidence recorded during trial, any material that has been

received by the Court after congnizance is taken and before the trial

commences, can be utilized only for corroboration and to support the

evidence recorded by the court to invoke the power u/s 319 Cr.P.C..

The ‘evidence’ is thus, limited to the evidence recorded during the

trial.”

29. As regards the degree of satisfaction in point (iv), the Apex Court discussed

in paragraph 90,93,94,96,100 and 106 of the judgment and held that

“Thus, we hold that though only a prima facie case is to be

established form the evidence led before the court not necessarily

tested on the anvil of cross-examination, it requires much stronger

evidence than mere probability of his complicity. The test that has to

be applied is one which is more than prima facie case as exercised at

the time o framing of charge, but short of satisfaction to an extent

that the evidence, if goes unrebutted, would lead to conviction. In the

absence of such satisfaction, the court should refrain from exercising

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power u/s 319 Code Criminal Procedure. In Section 319 Code of

Criminal Procedure the purpose of providing if it appears form the

evidence that any person not being the accused has committed any

offence ‘ is clear from the words” for which such person could be tried

together with the accused” The words used are not ‘for which such

person could be convicted’. There is, therefore , no scope for the

Court acting u/s 319 Cr.P.C. to form any opinion as to the guilt of the

accused ‘(para 106).

30. As regards the point no. (v) does the power under Section 319 Cr.P.C.

extend to persons not name in the FIR or named in the FIR but not charged or who

have been discharged the Hon’ble Apex Court in paragraphs 107 and 116 of the said

judgment held that

“Thus, it is evident that power u/s 319 Cr.P.C. can be exercised

against a person not subjected to investigation, or a person placed in

the column 2 of the Charge-sheet and against whom cognizance had

not been taken, or a person who has been discharged. However,

concerning a person who has been discharged , no proceedings can

be commenced against him directly u/s 319 Cr.P.c. without taking

recourse to provisions of Section 300(5) read with Section 398

Cr.P.C.(para 116).

31. As regards the ground taken in Criminal Petition 446/2015 regarding sanction

for prosecution it is to be noted that the accused persons have been summoned to

face the trial for the offences u/s 120B/406/408/34 IPC and there is no mention in

the order dated 2.2.2015 to the effect of any offence under the prevention of

Corruption Act, 1988, the question of previous sanction as required under Section 19

of the P.C. Act does not require in the instant case. Furthermore, two persons

namely Sri T N Bhutia and Sri Manabendra Choudhury have already retired form

service. On such count previous sanction under provisions of Section 197 Cr.P.C.

does not require against those two officials. As regards the requirement of previous

sanction to prosecute government employees to prosecute under Section

120B/406/408/34 IPC, the Apex Court in Prakash Singh Badal and Another vs the

State of Punjab and others, reported in (2007) 1 SCC 1, observed that

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“ If therefore, when the offence is alleged to have been committed,

the accused was a public servant but by the time the court is called

upon to take cognizance of the offence committed by him as public

servant, he has ceased to be a publics servant, no sanction would be

necessary for taking cognizance of the offence against him. This

approach is in accord with the policy underlying Section 6 in that a

public servant is not to be exposed to harassment of a frivolous or

speculative prosecution. If he has ceased to be a public savant in the

meantime, this vital consideration ceases to exist. As a necessary

corollary, if the accused has ceased to be a public servant at the time

when the court is called upon to take cognizance of ht offence allege

dot have been committed by him as public servant, Section 6 is not

attracted. This aspect is no more re integra” (para 16).

32. The Apex Court further held in the said judgment as below:

“The effect of sub-sections (3) and (4) of section 19 of the Act are of

considerable significance. In Sub-Section (3) the stress is on “failure

of justice” and that too” in the opinion of the Court”. In sub-section

(4), the stress is on raising the plea at the appropriate time.

Significantly, the “failure of justice” is relatable to error, omission or

irregularity in the sanction. Therefore, mere error, omission or

irregularity in sanction is considered fatal unless it has resulted in

failure of justice or has been occasioned thereby. Section 19(1) is a

matter of procedure and does not go to root of jurisdiction a observe

din para 95 of the Narasimha Rao’s case (supra). Sub-section (3)© of

section 19 reduces the rigour of kprohibition”(para 29)

“The question relating to the need of sanction u/s 197 of the Code is

not necessarily to be considered as soon as the complaint is lodged

and on the allegations contained therein. This question may arise at

any stage of the proceedings. The question whether sanction is

necessary or not may have to be determined from stage to

stage”(paa 38).

22

“The offence of cheating u/s 420 or for that matter offences relatable

to Section 467,478,471 and 120B can by no stretch of imagination by

their very nature be regarded as having been committed by any

public servant while acting or purporting to act in discharge of official

duty. In such cases official status only provides an opportunity for

commission of the offence’ (para 50).

33. In Bholu Ram (supra), the Apex Court held as under:

“We express our inability to agree with the learned counsel. It is

settled law that offence punishable under Section 409,420, 467, 468,

471 etc can by no stretch of imagination by their very nature be

regarded as having been committed by a public servant while ‘acting

or purporting to act in discharge of official duty(vide Prakash Singh

Badal and another –vs- State of Punjab and others) (para 60)

34. In Matajog Dobey –vs- H.C.Bhari, (supra) the Five Judges Bench of the

Hon’ble Supreme Court held that there must be reasonable connection between the

act and the discharge of official duty by a government employee. The act must bear

such relation to the duty that the accused could lay a reasonable, but not a

pretended or fanciful claim, that he did it in the course of the performance of his

duty.(para 17,19,20,21,23 and 24).

35. In Suresh Kumar Bhikamchand Jain –vs- Pandey Ajay Bhushan and ors ,

reported in (1998) 1 SCC 205, the Apex Court also maintained the said position and

held hat question of sanction can be considered at any stage of the proceedings

(para 23)

36. In Paul Varghese –vs- the State of Kerala and another, (supra) the Hon’ble

Supreme Court held that merely because there is any omission , error or

irregularities in the matter of according sanction, that does not affect the validity of

the proceedings unless the court records the satisfaction that such error, omission or

irregularities has resulted in failure of justice. The same logic also applies to the

appellate and revisional court (para 8 and 9)

37. In view of legal proposition set forth by the Hon’ble Apex Court it can be

arrived at that the learned trial Court has ample power to invoke the provisions of

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Section 319 Cr.P.C. and to implead the persons not awarded in the Charge-sheet

having regard to the evidence on record which included the cross-examination of the

witnesses, if the Presiding Office is fully satisfied on the matter on record that it

appears that such person should also be tried together along the accused already

facing trial. The degree of satisfaction as discussed in the aforesaid Hardeep Singh

case there is no any whisper that the trial Court cannot take into consideration the

evidence given in cross-examination. The submissions of the petitioners on this

account that the Court can only look into the evidence in examination-in-chief is no

way sustainable. Similarly considering the stage of taking congnizance at the latter

stage of evidence, and the nature of offence, the matter of sanction is not required

as has been discussed in Prakash Singh Badal (supra). On the other hand though the

learned trial Court has not recorded long detail of reasons for invoking the provisions

U/S 319 Cr.P.C. but his observation indicates that he has gone through all the

evidence and matters on record and record his satisfaction prior to invoking the

jurisdiction. The overwhelming evidence of the officer concerned of the

establishment of EPFO where the present petitioners were employees, as discussed

above is enough to arrive such finding. If the respondent nos. 1 and 2 played one

part of the offence in the office of M/s Dony Pollo Mission by forwarding fake P.F.

claims, then the vital part of releasing the fake amount, without verifying the

documents, bank accounts etc has been done by the officials of the EPFO office/viz

the present petitioners. Such release of public money by violating the standing

provisions by all such officials/present petitioners cannot be simply termed as

irregularities as has been shown by the Investigating Agency/CBI. The submissions

of the learned counsel for CBI that they found no mens rea on the part of these

officials cannot hold good in view of evidence on record as well as the complaint

made by the Vigilance Officer of EPFO office.

38. In such identical situation the role of the State has been discussed in

Bholuram (supra) in para 64 and 66 in the following manner:

“ We may examined the role of the State also. We have already noted

earlier that an order passed by the Judicial Magistrate summoning

respondent noi.2 as accused was challenged by the Sate by filing a

revision in the Court of Sessions, which was dismissed. Even in this

Court, the State supported respondent no.2. An affidavit in reply is

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filed by the State through Deputy Superintendent of Police in March

2007, even before counter affidavit was filed by contesting

respondent No.2. “

“(In the totality of the facts and circumstances, the submission of the

learned Counsel for the appellant that the State Authorities were

helping and assisting respondent no.2 cannot be said to be totally ill-

founded or without substance. The State, in our opinion, could have

avoided such embarrassment.”

39. The Constitutional Bench of the Apex Court discussed the above aspect and

power and ambit of Section 319 Cr.P.C. in the case of Hardeep Singh –vs- State of

Punjab and others, (supra) .

“91.invariably the State would not oppose or object to naming of

more persons as an accused as it would only help the prosecution in

completing the chain of evidence, unless the witness(s) is obliterating

the role of persons already facing trial.”

40. In view of all above discussions and findings, it is found that there is no

infirmity in the order dated 2.2.2015 passed by the learned trial Court as regards

invoking of provisions U/S 319 Cr.P.c. so far as four accused petitioners namely, (1)

Muhiram Sonowal, (2) Subudh Ch. Rabha, (3) N. K. Hazarika and (4) T. N. Bhutia

but so far as the petitioner Sri T.C.Kalita there is no implicating evidence to suggest

his complicity to the offence alleged so his name has been arrayed inadvertently only

because he was also a Section Supervisor at the relevant time. But the evidence

referred earlier suggest that Sri Subudh Ch. Rabha dealt with the above fictitious

claims as a Section Supervisor.

41. Accordingly the impugned order made by the Special Judge is hereby upheld

as regards the four petitioners named above and the order as regards P.C.Kalita is

hereby set aside.

42. The Revision Petition No. 186/2015 preferred by the CBI as well as Criminal

Petition No.446/2015 preferred by four petitioners deserves no merit, hence

dismissed. The Criminal Petition No.526/2015 filed by Sri P.C. Kalita is allowed.

25

43. The four petitioners, namely, Muhiram Sonowal, Subudh Ch. Rabha, N. K.

Hazarika and T. N. Bhutia are hereby directed to appear before the learned trial

Court within 15 (fifteen) days from the passing of this order and in view of the old

pendency of the matter, the learned trial Court is directed to dispose the case at

the earliest preferably within three months.

44. All the petitions stand disposed accordingly.

JUDGE

Nandi

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