Bina Babu Singha vs The State Of Assam And 4 Ors
2022 Latest Caselaw 4768 Gua

                                                                    Page No.# 1/5

GAHC010238802022




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/7590/2022

         BINA BABU SINGHA
         S/O- LT. MIKOY SINGHA, ASSTT. RESEARCH OFFICER, EVALUATION AND
         MONITORING DIVISION, TRANSFORMATION AND DEVELOPMENT DEPTT.,
         DISPUR, GHY, R/O- WARD NO. 30, BYE LANE NO. 11, H. NO. 9, BACK SIDE
         OF PATHARKUCHI ME SCHOOL, P.O. BASISTHA CHARIALI, P.S. BASISTHA,
         KAMRUP (M), GHY-29, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP. BY THE ADDL. CHIEF SECY., TO THE GOVT. OF ASSAM, DEPTT. OF
         TRANSFORMATION AND DEVELOPMENT, BLOCK-D, 2ND FLOOR, ASSAM
         CIVIL SECRETARIAT, JANATA BHAWAN, DISPUR, GHY, ASSAM, PIN- 781006

         2:THE SECRETARY TO THE GOVT. OF ASSAM
          DEPTT. OF TRANSFORMATION AND DEVELOPMENT
          BLOCK-F
          3RD FLOOR
         ASSAM CIVIL SECRETARIAT
          JANATA BHAWAN
          DISPUR
          GHY
         ASSAM
          PIN- 781006

         3:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
          POLITICAL (VIGILANCE) DEPTT.
          DISPUR
         ASSAM CIVIL SECRETARIAT
          DISPUR
          GHY
         ASSAM
                                                                      Page No.# 2/5

            PIN- 781006

           4:THE ADDL. DIRECTOR GENERAL OF POLICE
           ASSAM
            DIRECTORATE OF VIGILANCE AND ANTICORRUPTION
           ASSAM
            SRIMANTAPUR
            GHY
           ASSAM
            PIN- 781032

           5:THE SUPERINTENDENT OF POLICE
            DIRECTORATE OF VIGILANCE AND ANTICORRUPTION
           ASSAM
            SRIMANTAPUR
            GHY
           ASSAM
            PIN- 78103

Advocate for the Petitioner : MR B D DAS
Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 05-12-2022

JUDGMENT & ORDER (ORAL)

Heard Mr. BD Das, learned senior counsel for the petitioner and Mr. D Nath, learned senior Government Advocate for the respondents.

2. The petitioner Bina Babu Singha, who was an Assistant Planning Officer in the office of the Deputy Commissioner, Darrang, is sought to be prosecuted under sections 7/13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 in connection with ACB PS Case No. 09/2016 registered under Sections 120B of the IPC read with Sections 7/13(1)(d)/13(2) of the Prevention of Corruption Act, 1988. As per the complaint made by Pallab Pran Sandilya in a written FIR made on 11.08.2016, the petitioner Bina Babu Singha was caught red handed at Page No.# 3/5

about 1.30 p.m. on 11.08.2016 while he was accepting gratification of Rs. 15,000/- from the complainant Pallab Pran Sandilya.

3. Accordingly, the investigating authority placed the matter before the Secretary to the Government of Assam in the Transformation and Development Department for grant of prosecution sanction against the petitioner which resulted in the order dated 06.08.2022. The relevant paragraphs by which the authorities arrived at its satisfaction for grant of sanction to prosecute the petitioner are extracted as below:-

"Whereas, after careful examination of the materials and the copies of the records furnished along with the investigation report from the Investigation Agency, (a) the FIR (b) the Seizure lists, (c) the Pre-Trap Memorandum, (d) the Trap Laying and Post Trap Memorandum, (e) the Statement of the complainant (f) the statements of the witnesses of the case (g) the Expert Opinion and other records, placed before it in regard to the said allegations and the circumstances of the case, it is considered that the arrested accused Sri Bina Babu Singha should be prosecuted in a Court of Law for the offences mentioned above.

And whereas, I Smti Dipima Buzarbaruah Malakar, Secretary to the Govt. of Assam, on behalf of the Governor of Assam , being the competent authority to remove the said Shri Bina Babu Singha from his service, after duly and carefully examining the materials and the documents placed before the undersigned with regard to the said allegations, and due application of mind in all material record examined, I am fully satisfied and consider that Shri Bina Babu Singha should be prosecuted in the Court of Law."

4. The order granting sanction for prosecution of the petitioner dated 06.08.2022 is assailed in this writ petition by the petitioner by referring to the communication dated 26.03.2015 of the Joint Secretary (S&VIG-II) to the Government of India in the Department of Personnel and Training, Ministry of Public Grievances and Pensions, wherein certain relevant paragraphs of the judgment of the Hon'ble Supreme Court rendered in Central Bureau of Investigation -vs- Ashok Kumar Aggarwal in Criminal Appeal No. 1838/2013 Page No.# 4/5

were communicated.

5. By referring to clause (b) of paragraph 8 of the judgment of the Hon'ble Supreme Court as contained in the communication of the Joint Secretary dated 26.03.2015, Mr. BD Das, learned senior counsel for the petitioner raises the contention that reading of the impugned order of sanction dated 06.08.2022 does not make it discernible that the authority concerned upon scrutiny of the whole records had made an independent application of mind by taking into consideration all relevant facts before grant of sanction.

6. Mr. D Nath, learned senior Government Advocate per contra raises the contention that all the relevant materials that the prosecution/investigation intended to rely upon had been placed before the Secretary to the Government of Assam in the Transformation and Development Department and the order of sanction was granted after taking note of all such relevant material.

7. Upon reading the order dated 06.08.2022, we are in agreement with Mr. D Nath, learned senior Government Advocate that all relevant materials were produced before the Secretary to the Government of Assam in the Transformation and Development Department. But, at the same time, a reading of the afore-extracted paragraphs in the order dated 06.08.2022 make it discernible that although all the materials on record were placed before the Secretary and the Secretary expresses that after careful examination of the materials and the records, the satisfaction in favour of a sanction was arrived, but a close reading of the same makes it discernible that the requirement of the Secretary of making an independent application of mind upon the materials on record appears to be not appropriately worded in the order. The order granting sanction for prosecution in a corruption cases forms one of the basis of the prosecution and any lacuna or shortcoming in such order of sanction may Page No.# 5/5

ultimately lead to an order in favour of the accused person.

8. The expression 'independent application of mind' requires the authority to look into the relevant materials on record and arrive at the satisfaction that the materials on record, if proved by the prosecution may form a prima-facie case against the accused and such satisfaction be recorded in the order itself.

9. Considering the matter in its entirety, instead of accepting the order dated 06.08.2022 of the Secretary to the Government of Assam in the Transformation and Development Department for prosecution and sanction, we remand the matter back to the Secretary to pass a fresh order putting it across the independent application of mind of the Secretary for passing an order in favour of sanction based on the materials on record that were placed before the Secretary, if deemed appropriate or pass any such order as may be appropriate. The fresh order to be passed shall prevail over the earlier order dated 06.08.2022.

10. Accordingly, the Secretary is directed to pass the fresh order within a period of seven days from the date of receipt of a certified copy of this order.

The writ petition stands disposed of as indicated above.

JUDGE

Comparing Assistant