RAKESH KUMAR PAUL Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. D K Mishra, learned Senior counsel assisted by Mr. PJ Borah, learned counsel for the petitioner. Also heard Mr. D Mazumdar, learned Additional Advocate General, Assam assisted by Ms. M Bhattacharjee, learned Additional Senior Government Advocate for the State respondent.

(2.) The petitioner was the Chairman of Assam Public Service Commission (APSC) and was arrested on 04.11.2016 in connection with Dibrugarh P.S. Case No. 936/2016 U/s 7/13(1)(a) (b)(d)(2) of the Prevention of Corruption Act , 1988 and Section 120 (B)/420/463/468/471 (A)/201 IPC corresponding to Special Case No. 02/2016. On 10.10.2018, an FIR was lodged by the private respondent No. 3 and on that day itself registered as CID P.S. Case No. 27/2018 U/s 120(B)/420 IPC R/w Section 7 / 13 (2) of the PC Act (amended). Section 17-A was introduced w.e.f. 26.07.2018 in the PC Act , 1988. Vide letter dated 12.10.2018 the Officer-in-Charge, CID PS, Ulubari made an application before the learned court of Special Judge, Assam, Guwahati referring to the said amended Section 17-A requiring prior Government approval for conducting investigation into allegations under PC Act against public servant, prayed before the said court to register the case (GR) in the learned Chief Judicial Magistrate, Kamrup (M) U/s 120 (B)/420 IPC instead of the earlier Section 120 (B)/420 IPC R/w Section 7 / 13(2) of PC Act as the said sections under the PC Act were applied by mistake at the time of registration of the case. The learned Special Judge vide order dated 12.10.2018 allowing the said petition, the FIR along with copy of the said order dated 12.10.2018 were directed to be transmitted to the learned Chief Judicial Magistrate, Kamrup (M) for doing the needful. On 12.10.2018 case records were placed before the learned Chief Judicial Magistrate and on the prayer of the Investigating Officer the petitioner as the accused was allowed to be shown as arrested in connection with CID P.S. Case No. 27/2018. In the meantime, Secretary to the Government of Assam in Political (Vigilance Cell) Department obtained the views of the Legal Remembrancer which is reproduced hereinbelow:

(3.) The Investigating Officer of the said CID PS Case No. 27/2018 vide an application before the learned Chief Judicial Magistrate, Kamrup (M), Guwahati with a prayer for addition of Section 7 / 13 (1)(d)/13(2) of the PC Act , 1988 sought for necessary order to be passed. The learned Chief Judicial Magistrate, Kamrup (M) vide order dated 07.12.2018 added the said Section under the PC Act and as the learned Special Judge has exclusive power to proceed the case under the said section of the PC Act , the case records were forwarded to the learned Special Judge, Assam for consideration. As per order dated 11.12.2018 passed in CID PS case No. 27/2018, the learned Special Judge, Assam after the charge-sheet No. 19/18 dated 11.12 2018 was submitted and as original FIR was lying in the court of Chief Judicial Magistrate, Kamrup (M), the charge-sheet and case diary were kept with the supplementary case record. However, in view of the prayer made by the Investigating Officer in order to get the prosecution sanction, the learned Special Judge, Assam passed the order awaiting to take cognizance of offence only on receipt of the prosecution sanction from the competent authority.