[APSC Cash-For-Jobs Case] Gauhati High Court Upholds Order Changing Status Of Suspended APS Officer Sukanya Das From Witness To Accused

The Gauhati High Court recently upheld an order of the Special Judge by which the status of the suspended APS officer Sukanya Das was changed from a witness to an accused in the APSC cash for job case under various provisions of the Prevention of Corruption Act, 1988 and IPC.

The single judge of Justice Mridul Kumar Kalita observed:

“There is nothing in the impugned order which shows that the learned Special Judge has taken cognizance of offence, under Section 5 of the Prevention of Corruption Act, 1988, against the present petitioner for the purpose of trial against her. The submission made by the learned Additional Public Prosecutor seems to have force that the plea raised by the learned senior counsel for the petitioner seems to be premature, as the further investigation against the present petitioner is yet to conclude and the Investigating Officer is yet to file the report under Section 173(8) of the Code of Criminal Procedure, 1973, against the present petitioner.”

The facts of the case reveal that on October 27, 2016, one Dr. Angshumita Gogoi had lodged an FIR at the Dibrugarh Police Station alleging that on Naba Kumar Patir had contacted her over telephone and asked her to pay a sum of Rs. 10 lakhs for getting appointed to the post of Dental Surgeon through the selection process conducted by Assam Public Service Commission (APSC), among other allegations.

On receipt of the said FIR Dibrugarh P.S., a case was registered under Sections 7, 13(1)(b),(2) of the Prevention of Corruption Act, 1988 read with Sections 120B and 420 of the Indian Penal Code, 1860.

The Investigating Officer (IO) on February 28, 2017, laid the supplementary charge-sheet No. 01 where the APS officer Sukanya Das (present petitioner) was shown as prosecution witness No. 4 in the list of witnesses of the said supplementary charge-sheet.

On January 04, 2018, another supplementary charge sheet, i.e., No.2 was laid against some of the accused persons wherein again the name of the petitioner was shown as prosecution witness in the list of witnesses of the said charge sheet.

It is to be noted that the Government of Assam constituted a Special Investigation Team (SIT) by a Notification dated September 30, 2023, to investigate the above-mentioned case registered at Dibrugarh P.S.

On November 23, 2023, it was stated that the petitioner received a notice under Section 41A of CrPC from the SIT, CID to appear before it on December 01, 2023. When the petitioner appeared before the SIT on December 04, 2023, she was arrested by the SIT on the ground that during the course of the investigation, sufficient evidence was found against the petitioner to the effect that she obtained a job in the Assam Government by adopting unlawful means in collusion with the arrested person Rakesh Kumar Pal and other officials of APSC.

The petitioner was initially remanded to police custody for five days and thereafter, was sent to judicial custody on December 8, 2023. However, by the impugned order dated January 17, 2024, she was granted bail with certain conditions.

It was stated that on January 11, 2024, the I.O. of the case filed an application before the Special Judge, Assam, praying for changing the status of the petitioner from a witness to an accused and then to prosecute her in the case.

The Special Judge by impugned order dated January 17, 2024, allowed the petition filed by the I.O. to change the status of the present petitioner from that of a witness to an accused.

The petitioner challenged the said order in the present criminal petition before the High Court.

The Senior Advocate A. M. Bora, appearing for the petitioner submitted that in the instant case the Special Judge by allowing the petition, filed by the I.O. on January 11, 2024, and treating the present petitioner as an accused, took cognizance of the offence against the present petitioner without there being any police report under Section 173(8) of CrPC before it.

He further submitted that the petition dated January 11, 2024, filed by the I.O. cannot be treated as a report under Section 173(8) of the CrPC, therefore, the Special Judge had erred and acted beyond the jurisdiction by allowing the said petition by the impugned order.

It was further submitted that a person can be arrayed as an accused in a case, where a charge sheet has already been laid, only by two modes. Firstly, by way of a report under Section 173(8) of CrPC, after completion of further investigation and secondly, under Section 319 of CrPC during the course of inquiry or trial, if it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried with other charge-sheeted accused.

However, it was argued that in the instant case, neither there is a police report against the present petitioner under Section 173 of the CrPC, nor the Court has exercised its powers under Section 319 of the CrPC.

On the other hand, the Additional Public Prosecutor (APP) submitted that only the status of the present petitioner has been changed from that of a witness to that of an accused as sufficient materials are there against her to do so. However, it was further submitted that the case against the petitioner is still at the stage of further investigation and the question of taking cognizance of offence against the present petitioner for the purpose of trial has not yet arisen therefore, the APP prayed for dismissing the present criminal petition filed by the petitioner.

The Court noted that by the impugned order, no cognizance of offence has been taken for the purpose of trial of the accused, it has merely changed the status of the petitioner from a witness to that of an accused in the light of materials revealed against the petitioner, in order to facilitate further investigation against the petitioner.

“In the instant case, the report under Section 173(8) of the Code of Criminal Procedure, 1973, against the present petitioner, is yet to be filed. Hence, as against the present petitioner, the cognizance of offence, for the purpose of trial, under Section 5 of the Prevention of Corruption Act, 1988 has not yet been taken by the learned Special Judge, Assam. He has only allowed the prayer for change of status of the petitioner from a witness to that of an accused for the purpose of facilitating further investigation against her,” the Court said.

Thus, the Court dismissed the petition filed by the petitioner on the ground that there was no error or irregularity in the impugned order passed by the Special Judge, Assam.

Case Title: Sukanya Das v. The State of Assam

Case No.: Crl.Pet./334/2024

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