Gauhati High Court
WP(C)/456/2021 on 9 January, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/10
GAHC010013612021
2025:GAU-AS:556
THE GAUHATI HIGH COURT
[THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH]
WRIT PETITION [C] NO. 456/2021
1. Ramendra Nath Das, son of Late Tanu Ram Das, resident
of Chandan Nagar, Six Mile, P.O. Dispur, P.S. Dispur, Ghy-
22, Dist.- Kamrup (M), Assam.
2. Girin Ch. Gope, son of Sri Gopi Nath Gope, resident of
Vill- Mandia, P.O. Mandia, P.S. Bagbor, Dist.- Barpeta,
Assam.
3. Subha Rani Basumatary, wife of Sri Santosh Deo Raja,
resident of Vill- Chabukdhara, P.O. Chabukdhara, P.S.
Mikirbheta, Dist.- Morigaon, Pin- 782106, Assam.
4. Chittaranjan Gogoi, son of Late Kanak Chandra Gogoi,
resident of Vill- Khutikatia, P.O. Haiborgaon, P.S. Sadar
Nagaon, Dist.- Nagaon, Assam.
..................Petitioners
-VERSUS-
1. The State of Assam, represented by the Chief Secretary to
the Government of Assam, Dispur, Ghy-05, Assam.
2. The Joint Secretary to the Government of Assam, Chief
Ministers Secretariat, Dispur, Ghy-05, Assam.
3. The Joint Secretary to the Government of Assam, Chief
Ministers Secretariat, Dispur, Ghy-05, Assam.
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4. The Secretary to the Government of Assam, Soil
Conservation Department, Dispur, Ghy-05, Assam.
5. The Superintendent of Police, Chief Ministers Vigilance
Cell, Dispur, Ghy-05, Assam.
6. The Learned Public Prosecutor, engaged to conduct the
Special Case no. 10 of 2018 in the court of Special Judge,
Assam, Ghy.
...................Respondents
Advocates :
Petitioner : Mr. M. Saika, Advocate
Respondent nos. 1, 2, 3 & 5 : Mr. T.C. Chutia, Additional Senior Government Advocate, Assam.
Respondent no. 4 : Mr. S.R. Rabha, Standing Counsel, Soil Conservation Department.
Date of Hearing : 07.01.2025 & 09.01.2025
Date of Judgment & Order : 09.01.2025
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [ORAL]
The instant writ petition under Article 226 of the Constitution of India is instituted by the
petitioners seeking setting aside and quashing of the criminal proceedings of Special Case no. 10 of
2018 pending before the Court of learned Special Judge, Assam at Guwahati wherein the petitioners are
facing the trial as accused. The petitioners have also sought for an appropriate direction to the said
respondents to prosecute all officers who were responsible for initiation of Special Case no. 10 of 2018
under anti-corruption law before the Court of learned Special Judge, Assam at Guwahati purportedly on
the ground that the prosecution has been launched against the petitioner for wrongful gains.
2. The petitioners, 4 [four] in nos., have joined together to institute the writ petition stating that
they have a common cause of action. The petitioners have averred that at the time of institution of the
writ petition, the petitioner nos. 1, 2 & 3 were serving in various capacities under the Department of
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Soil Conservation, Government of Assam. At the time of institution of the writ petition, the petitioner
no. 4 had already retired from service from the Soil Conservation Department, Government of Assam
on reaching the age of superannuation.
3. The facts leading to the institution of the writ petition can be exposited, briefly, as follows :-
4. One Sri Dibyajyoti Nath, a resident of Tezpur, submitted a complaint petition dated 28.10.2014
before the Office of the Hon’ble Chief Minister of Assam reporting irregularities / illegalities
committed in implementation of various Government schemes in the Soil Conservation Division of
Tezpur during the period from 2008-2009 to 2013-2014. It was alleged that irregularities / illegalities
were committed and Government funds were misappropriated in the process. It was on the basis of the
said complaint, the Chief Minister’s Secretariat initiated one regular enquiry being Regular Enquiry no.
11 of 2015 and one Dulen Chandra Deka, APS, Deputy Superintendent of Police, CM’s Vigilance Cell
was entrusted with the task to cause the regular enquiry. It was vide U.O. no.
CMS[G]46/2014[Complaint-26]/9 dated 30.04.2015, the Joint Secretary to the Government of Assam,
Chief Minister’s Secretariat, Dispur accorded approval to the Superintendent of Police, Chief
Minister’s Special Vigilence Cell [SVC], pursuant to the recommendation sent vide Letter no.
SVC/RE/PE-10/14/C/162 dated 20.03.2015, for initiating a regular enquiry against the officials of
DRDA, Sonitpur and Zilla Parishad, Sonitpur for their alleged misappropriation of rural development
funds.
5. During the course of regular enquiry, materials were said to have unearthed indicating
irregularities taking place in the construction works of Nabil Pathar Gully Control Project 2012 – 2013
and Teliapathar Land Improvement – cum – Gully Control Project 2013 – 2014 and regarding
misappropriation of Government fund. Accordingly, a First Information Report [FIR] came to be
lodged before CM’s Special Vigilance Cell [SVC] on 25.01.2017, to register a case against :- [1] Sri
Ramendra Nath Das [the petitioner no. 1]; [2] Sri Swapan Kr. Deb; [3] Sri Chittraranjan Gogoi [the
petitioner no. 4]; [4] Sri Giren Ch. Gope [the petitioner no. 2]; [5] Smti. Subha Rani Basumatary [the
petitioner no. 3]; and [6] Sri Bhishma Kr. Dangal. On registration of the FIR as SVC Police Station
Case no. 03 of 2017 under Sections 120B, 406, 468, 471, 409 & 420, Indian Penal Code [IPC] read
with Section 13 [2] of the Prevention of Corruption Act, 1988 [‘the P.C. Act‘, for short], as amended,
the investigation was initiated. After completion of investigation, the Investigating Officer [I.O.] of the
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case submitted a charge-sheet being Charge-Sheet no. 05 of 2018 on 05.02.2018 under Section 173 [2],
CrPC finding a prima facie case well established under Sections 120B, 406, 468, 471, 409, 420 & IPC
read with Section 13 [2] of the P.C. Act against [1] Sri Ramendra Nath Das [the petitioner no. 1]; [2]
Sri Swapan Kr. Deb; [3] Sri Chittaranjan Gogoi [the petitioner no. 4]; [4] Sri Giren Gope [the petitioner
no. 2]; and [5] Smti. Subha Rani Basumatary [the petitioner no. 3].
6. After the said Charge-Sheet was submitted before the Court of Special Judge, Assam at
Guwahati, a case, Special Case no. 10 of 2018 has been registered. After registration of Special Case
no. 10 of 2018 on submission of the Charge-Sheet before the Court of learned Special Judge, Assam,
the case was posted on 09.02.2018 for taking cognizance. The learned Special Court by Order dated
09.02.2018, posted the case on 15.02.2018 for taking cognizance. Thereafter, the case was posted again
on 23.02.2018 for taking cognizance. On 23.02.2018, the learned Special Court finding that the
prosecution sanction order was yet to be received, ordered to list the case on 27.04.2018 for submission
of prosecution sanction order / cognizance. When the case was posted on 27.04.2018, the concerned
Investigating Officer [I.O.] of the case submitted the prosecution sanction order against the accused
persons, namely, [1] Sri Ramendra Nath Das [the petitioner no. 1]; [2] Sri Swapan Kr. Das; [3] Sri
Chittaranjan Gogoi [the petitioner no. 4]; [4] Sri Girin Gope [the petitioner no. 2]; and [5] Smti. Subha
Rani Basumatary [the petitioner no. 3].
7. The learned Special Court after perusal of the materials on record, took cognizance of the
offences and issued process against the afore-mentioned accused persons. The four petitioners herein
were amongst the accused persons against whom the process were issued by the learned Special Court,
after taking cognizance on 27.04.2018. After appearance of accused persons, the learned Special Court
after perusal of the materials on record and after hearing the learned Public Prosecutor and the learned
Defence Counsel, framed charges against the petitioners on 11.02.2019. Against the petitioner no. 1, the
petitioner no. 2, the petitioner no. 3 and the petitioner no. 4, charges were framed for the offences under
Sections 120B, 420, 409, 468 & 471, IPC read with Section 13[1][d][ii] / 13[2] of the P.C. Act. When
the charges were read over and explained to the accused persons, that is, the petitioners pleaded not
guilty and claimed to be tried. Thereafter, the case, Special Case no. 10 of 2018 proceeded to the trial
stage for recording of evidence of prosecution witnesses.
8. When this writ petition was preferred the case, Special Case no. 10 of 2018 was at the stage of
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recording of evidence of prosecution witnesses.
9. I have heard Mr. M. Saikia, learned counsel for the petitioners; Mr. T.C. Chutia, learned
Additional Senior Government Advocate, Assam for the respondent nos. 1, 2, 3 & 5; and Mr. S.R.
Rabha, learned Standing Counsel, Soil Conservation Department for the respondent no. 4.
10. Mr. Saikia, learned counsel for the petitioners has placed reliance on Section 17A of the
Prevention of Corruption Act, 1988 to contend that when the State Government accorded approval for
initiating the regular enquiry on 30.04.2015, the regular enquiry was made limited to the allegations
against the officials of the DRDA, Sonitpur and the Zilla Parishad, Sonitpur for their roles in the
alleged misappropriation of rural development fund and the said fact is evident from the approval
accorded vide U.O. no. CMs[G]46/2014 [Complaint-26]/9. He has submitted that the petitioners, who
were officials in the Soil Conservation Department, Government of Assam, at the relevant time, were
also posted in various capacities in the district of Sonitpur. He has further contended that the Vigilance
Cell officials exceeded their jurisdiction during the course of the regular enquiry initiated subsequent to
the approval dated 30.04.2015 by investigating against the officials / employees of the Soil
Conservation Department, Sonitpur including the petitioners. He has contended that Section 17A of the
P.C. Act has contained a mandate that no Police official shall conduct any enquiry or inquiry or
investigation into any offence alleged to have been committed by a public servant under the P.C. Act,
where the alleged offence is relatable to any recommendation made or decision taken by such public
servant in discharge of official functions or duties, without the previous approval of the competent
authority, as mentioned in sub-clauses [a] or [b] or [c], as the case may be. Since the case of the
petitioners did not fall under any of the two provisos to Section 17A, the Police officials causing
regular enquiry could not have suggested for lodging an FIR against the officials of the Soil
Conservation Department, Government of Assam who were posted, at the relevant time, in the district
of Sonitpur in various capacities like the petitioners. In spite of such statutory bar, the FIR was lodged
on 25.01.2017 and thereafter, the Charge-Sheet under Sections 173[2], CrPC came to be laid vide
Charge-Sheet no. 05 of 2018 on 05.02.2018 whereby the petitioners were charge-sheeted. As the
illegality goes to the root of the matter, the entire prosecution stood vitiated from the very beginning.
Mr. Saikia has further contended that the prosecution sanction which was accorded on 14.02.2018, that
is, after submission of the Charge-Sheet on 05.02.2018, was also bad in law as it was accorded without
any application of mind.
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11. Mr. Chutia, learned Additional Senior Government Advocate, Assam appearing for the
respondent nos. 1, 2, 3 & 5 has contended that the provisions of Section 17A of the P.C. Act is not
attracted in the case of the petitioners. He has submitted that Section 17A of the P.C. Act cannot be said
to have retrospective effect and it is to be considered to be prospective in nature. He has submitted that
the FIR was submitted on 25.01.2017 and after completion of investigation, the Charge-Sheet was
submitted on 05.02.2018. He has further submitted that the issue regarding prosecution sanction order
dated 14.02.2018 has already been answered in a Judgment and Order dated 26.04.2019 passed in a
Criminal Petition no. 311 of 2018, which was preferred by the petitioners themselves along with the
other charge-sheeted accused person, Swapan Kr. Das. As the point has already been answered in a
Judgment and Order dated 26.04.2019, it is not open for the petitioners to re-agitate the same point
again in this writ petition.
12. Mr. Rabha, learned Standing Counsel, Soil Conservation Department has supported the
submissions of Mr. Chutia, learned Additional Senior Government Advocate, Assam.
13. I have given due consideration to the submissions of the learned counsel for the parties. I have
also perused the materials brought on record by the parties through their pleadings, besides going
through the materials available in the case records of Special Case no. 10 of 2018, scanned copies of
which have been received after being requisitioned from the Court of learned Special Judge, Assam at
Guwahati by an Order dated 03.08.2021 passed by this Court.
14. As the submissions on the first part have been made on the basis of the approval granted for
initiating regular enquiry on 30.04.2015 by the Chief Minister’s Secretariat, Government of Assam, it
appears appropriate to refer to the contents of the said order according approval. For ready reference,
the approval granted for initiating the regular enquiry is reproduced hereinbelow :-
GOVERNMENT OF ASSAM
CHIEF MINISTER’S SECRETARIAT
DISPUR
U.O. NO. CMS[G]46/2014[Complaint-26]/9
Dated April 30th 2015
Page No. 7/10Superintendent of Police, Chief Minister’s SVC, U/O
In pursuance of your recommendation sent vide letter no. SVC/RE/PE-10/14/C/162 dated
20.03.2015, approval is accorded for initiating a Regular Enquiry against the officials of DRDA,
Sonitpur and Zilla Parishad Office, Sonitpur for their alleged misappropriation of rural
development funds.
Joint Secretary to the Government of Assam
Chief Minister’s Secretariat, Dispur
15. On perusal of the approval of the afore-quoted approved, it can be noticed that approval was
accorded for initiating a regular enquiry against the officials of the DRDA, Sonitpur and the Zilla
Parishad, Sonitpur for their roles in the alleged misappropriation of Rural Development funds. It was
on the basis of the said approval, a regular enquiry, SVC Regular Enquiry no. 11 of 2015 was
conducted and after conducting the regular enquiry, the FIR came to be lodged before the Officer In-
Charge, CM’s Special Vigilance Cell [SVC], Assam at Guwahati on 25.01.2017. On receipt of the FIR,
the Officer In-Charge, CM’s Special Vigilance Cell [SVC], Assam at Guwahati registered the same as
SVC Police Station Case no. 03 of 2017 on 25.01.2017 against the four petitioners herein, Sri Swapan
Kr. Das and Sri Bhishma Kumar Dangal. During the course of the regular enquiry, materials were
purportedly found to the effect that there was misappropriation of Government Fund amounting to Rs.
25,44,689/- sanctioned for implementation of Nabil Pathar Gully Control Project 2012 – 2013 and
Teliapathar Land Improvement – cum – Gully Control Project 2013 – 2014 against the persons named
therein which included four petitioners herein and other persons, who appeared to be involved in a
criminal conspiracy of misappropriating Government fund criminally. On completion of investigation
of CM’s SVC Case no. 10 of 2018, a charge-sheet came to be made vide Charge-Sheet no. 05 of 2018
on 05.02.2018 finding a prima facie case against the charge-sheeted accused persons, already
mentioned herein. The four petitioners herein were amongst the six charge-sheeted accused persons.
16. Section 17A has been inserted into the Prevention of Corruption Act, 1988 by Act 16 of 2018
with effect from 26.07.2018. Section 17A of the P.C. Act reads as under :-
17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by
Page No. 8/10public servant in discharge of official functions or duties.– No police officer shall conduct any enquiry or
inquiry or investigation into any offence alleged to have been committed by a public servant under this Act,
where the alleged offence is relatable to any recommendation made or decision taken by such public
servant in discharge of his official functions or duties, without the previous approval —
[a] in the case of a person who is or was employed, at the time when the offence was alleged to have
been committed, in connection with the affairs of the Union, of that Government;
[b] in the case of a person who is or was employed, at the time when the offence was alleged to have
been committed, in connection with the affairs of a State, of that Government;
[c] in the case of any other person, of the authority competent to remove him from his office, at the
time when the offence was alleged to have been committed :
Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the
charge of accepting or attempting to accept any undue advantage for himself or for any other person :
Provided further that the concerned authority shall convey its decision under this section within a period of
three months, which may, for reasons to be recorded in writing by such authority, be extended by a further
period of one month.
17. Section 17A has provided a check inter-alia to the effect that in the case of person who is or
was employed, at the time of when the offence was alleged to have been committed, in connection with
the affairs of a State, no police officer shall conduct any enquiry or inquiry or investigation into any
offences alleged to have been committed by the State Government employee under the P.C. Act, where
the alleged offence is relatable any recommendation made or a decision taken by such public servant in
discharge of his official functions or duties, without the approval of the State Government.
18. In the case in hand, firstly, the regular enquiry was initiated on 30.04.2015; secondly, the FIR
was lodged on 25.01.2017; thirdly, the charge-sheet being Charge-Sheet no. 05 of 2018 was laid on
05.02.2018; fourthly, the prosecution sanction was accorded on 14.02.2018; and fifthly, the
cognizance was taken by the learned Special Court on 27.04.2018. The question which has, thus, arisen
is whether the bar incorporated in the provisions of Section 17A of the P.C. Act which was brought into
the statute with effect from 26.07.2018, can be made applicable to the case of the petitioners.
19. The answer is evidently dependent on the aspect whether the provisions of Section 17A of the
P.C. Act can be applied retrospectively. It is a cardinal principle of construction that every statute is
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prospective in nature, unless it is expressly or by necessary implication made to have retrospective
operation. It is also settled that there is a presumption against retrospectivity. The issue as to whether
the provisions of Section 17A of the P.C. Act can be applied retrospectively or not is no longer res
integra. It has been observed by the Hon’ble Supreme Court of India in Criminal Appeal no.
1647/2021 [State of Rajasthan vs. Tejmal Choudhary] and other accompanying criminal appeals,
2021 SCC Online SC 3477, decided on 16.12.2021, in the context of Section 17A of the P.C. Act that
it is well settled principle of interpretation that the legislative intent in the enactment of the statute is to
be gathered from the express words used in the statute unless the plain words literally construed give
rise to absurd results. It has been held therein that the provisions of Section 17A of the P.C. Act,
inserted with effect from 26.07.2018, does not have retrospective operation. Thus, the contentions
advanced on behalf of the petitioners herein with respect to the provisions of Section 17A of P.C. Act
has to fail.
20. In so far as the contention regarding non-application of mind on the part of the sanctioning
authority in granting prosecution sanction on 14.02.2018 is concerned, Mr. Chutia, learned Additional
Senior Government Advocate, Assam is right in his contention that the issue has already been dealt
with in the Judgment and Order dated 26.04.2019 passed by this Court in a criminal petition, Criminal
Petition no. 311 of 2018 [Ramendra Nath Das and others vs. the State of Assam] . At the cost of
repetition, it may be mentioned that the four petitioners herein were amongst the five petitioners in
Criminal Petition no. 311 of 2018 . One of the issues which emerged for consideration in the said
criminal petition was whether the prosecution sanction accorded under Section 19 of the P.C. Act was
bad and invalid. In paragraph 8 of the Judgment and Order dated 26.04.2019, the Court had recorded
that the main grounds of attack against the prosecution sanction appeared to be non-application of mind
by the sanctioning authority and that sanctions were also not accorded by the competent authority as he
appeared to have delegated the power to another authority. After hearing the parties and after going
through the materials on record, the Court had found no force on the submission advanced by the
petitioners herein that the prosecution sanction appeared to have suffered from non-application of
mind. Once it is found that the petitioners had agitated the point that the prosecution sanction accorded
under Section 19 of the P.C. Act had suffered from non-application of mind on the part of the
sanctioning authority in Criminal Petition no. 311 of 2018 and the said issue has already been
adjudicated in the Judgment and Order dated 26.04.2019, it is not open for the petitioners to agitate the
same point again in the instant writ petition.
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21. In view of the discussion made above and for the reasons recorded therein, I find that
none of the two points contended by the learned counsel for the petitioners deserve to be
accepted. Consequently, the instant writ petition is found to be bereft of any merits and is
liable to be dismissed. The writ petition is, therefore, dismissed. There shall, however, be no
order as to cost.
JUDGE
Comparing Assistant
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