Avatar Singh vs The State Of Assam And Anr

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GAHC010092622026

2026:GAU-AS:15885
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./660/2026
AVATAR SINGH
SON OF LATE PRITAM SINGH
RESIDENT OF FLAT NO. D-1, ADARSHAPUR, BYE LANE-1, BEHIND
SARBASIKSHA MISSION OFFICE, P.O. KAHILIPARA, P.S. DISPUR, DIST.
KAMRUP (M), ASSAM. PIN-781019
VERSUS
THE STATE OF ASSAM AND ANR
THROUGH THE PP, ASSAM
2:SHRI CHAMPAK DEKA
UNDER SECRETARY TO THE GOV.T OF ASSAM
(PRESENTLY DEPUTY SECRETARY)
PUBLIC HEALTH ENGINEERING DEPARTMENT
ASSAM
B-BLOCK
JANATA BHAWAN
DISPUR
GUWAHATI-781006
Advocate for the Petitioner : MR. B K DAS, H P NEOG,MR H P GUWALA
Advocate for the Respondent : PP, ASSAM, MR. A GOSWAMI (R-2),MR. P N GOSWAMI, SR.
ADV. & ADDL. AG, ASSAM (R-2),MR. R KARIM (R-2),MR. A DEKA (R-2)

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BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
Date on which judgment was reserved : 20.08.2026

Date of pronouncement of judgment : 16.10.2026

Whether the pronouncement is of the : Yes
operative part of the judgment?

Whether the full judgment has been : NA
pronounced?

JUDGMENT AND ORDER ( CAV )

Heard Mr. B. K. Das, learned counsel for the petitioner. Also heard Mr. P.
Kataki, learned Senior Counsel/Standing Counsel for the C.M. Vigilance Cell,
assisted by Ms. N. Kashyap, learned counsel and Mr. A. Deka, learned counsel
for respondent No. 2.
2. This is an application under Section 528 of the BNSS, 2023 seeking setting
aside and quashing of the FIR in Vigilance P.S. Case No. 11/2025 under Sections
120B/420/406/409/468/471 of the Indian Penal Code, read with Sections 13(1)
(a)/13(2)/12 of the Prevention of Corruption Act, 1988, the consequential
charge-sheet and the order dated 21.02.2026 passed by the learned Special
Judge, Kamrup (M), taking cognizance in Special Case No. 19/2026.
3. The facts leading to the filing of the present petition, as projected by the
petitioner, may be considered at the outset:
3.1. The petitioner was transferred on promotion to the post of Executive
Engineer, PHE, Nalbari, vide order dated 26.12.2019 and joined the said

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office on 31.12.2019. Thereafter, vide order dated 05.05.2022 issued by
the Additional Chief Secretary, Government of Assam, PHE Department,
the petitioner was promoted to the post of Superintending Engineer, PHE
and was posted in the office of the Chief Engineer, PHE, Hengrabari. It is
the case of the petitioner that, while handing over charge on transfer, the
then Executive Engineer, PHE, Nalbari Division, issued a No Liability
Certificate dated 12.05.2022 in his favour.
3.2. It is the case of the petitioner that, for implementation of the “
Rural
Water Supply & Total Sanitation Programme” , the Public Health
Engineering Department, Dispur, vide notification dated 16.10.2009,
constituted four committees, namely, the District Water and Sanitation
Committee (DWSC), the Anchalik Panchayat/Block Water and Sanitation
Committee (APWSC) and the Gram Panchayat Level Water and Sanitation
Committee (GWSC). Under the scheme, the GWSC was entrusted with
identification of beneficiaries for construction of Individual Household
Latrines (IHHL), while the authorized Sectional Officer/Junior Engineer,
PHE, Belsor, issued work orders to various NGOs, including HAMES
Society.
3.3. Upon completion of the works, verification reports were issued by
the concerned authorities. Thereafter, the Assistant Executive Engineer,
PHE, Belsor Division, forwarded the bills to the petitioner, who was then
functioning as Member Secretary of the DWSC-cum-Executive Engineer,
Nalbari Division, along with the relevant work orders and verification
reports.
3.4. It is stated that, relying upon the said documents, the bills were

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processed by him, subject to approval of the Deputy Commissioner,
Nalbari, who was the Chairperson of the DWSC.
3.5. Thereafter, the Commissioner and Secretary, PHE Department,
Assam, issued a show-cause notice dated 13.06.2022 to the petitioner
proposing initiation of a departmental enquiry on the allegation of
misappropriation of funds under the Swachh Bharat Mission (Gramin) in
Nalbari District. Pursuant thereto, a departmental enquiry was conducted
and an enquiry report dated 21.02.2023 came to be issued. On the basis
of the departmental proceedings, the competent authority, vide order
dated 14.12.2023, imposed the punishment of dismissal from service
upon the petitioner.
3.6. Aggrieved by the said order, the petitioner approached this Court by
filing W.P.(C) No. 2211/2024. This Court, vide judgment and order dated
27.02.2025 passed in the said writ petition, set aside the punishment
order dated 14.12.2023 and directed the department to reinstate the
petitioner in service, while granting liberty to the department to initiate a
fresh enquiry. Pursuant thereto, the petitioner was reinstated in service,
vide order dated 24.04.2025.
3.7. It is the further case of the petitioner that he was at the top of the
cadre of Superintending Engineer, PHE, Assam, for consideration for
promotion to the post of Additional Chief Engineer, PHE, Assam, as
evident from the notification dated 06.05.2025 issued by the Secretary,
PHE Department, Assam. It is the case of the petitioner that despite his
reinstatement in service with effect from 27.02.2025, the department did
not grant him promotion on account of the pending litigations.

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3.8. Thereafter, the department again issued a show-cause notice dated
30.07.2025 to the petitioner on the same charges for initiation of
departmental enquiry. The said show-cause notice was challenged by the
petitioner in W.P.(C) No. 4414/2025. This Court, vide order dated
06.08.2025, stayed the operation of the show-cause notice dated
30.07.2025, the petitioner’s case being that the said notice had been
issued contrary to the specific direction contained in the judgment and
order dated 27.02.2025. The said writ petition is stated to be pending.
3.9. The petitioner also refers to another show-cause notice dated
23.05.2025 issued by the department after his reinstatement on the
same charges. The said notice was challenged by the petitioner in W.P.
(C) No. 3475/2025. During the pendency of the said writ petition, the
department, vide order dated 25.06.2025, cancelled the show-cause
notice dated 23.05.2025. In view thereof, the writ petition was closed.
3.10. While the aforesaid proceedings were continuing, an Ejahar came
to be lodged on 02.05.2025 through the Under Secretary to the
Government of Assam, PHE Department, alleging misappropriation of
Government money in the form of payment of bills for construction of
IHHL under the Swachh Bharat Mission (Gramin). The allegations related
to the period when the petitioner was functioning as Executive Engineer,
PHE, Nalbari Division. The said Ejahar relied upon the reports dated,
04.04.2022, 27.04.2022, 28.04.2022 and the departmental enquiry report
dated 21.02.2023.
3.11. The petitioner specifically states that the report dated 27.04.2022
did not recommend registration of an FIR and according to him, merely
suggested initiation of departmental proceedings. It is further his case

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that both the report dated 27.04.2022 and the departmental enquiry
report dated 21.02.2023 had already been interfered with by this Court in
its judgment and order dated 27.02.2025 passed in W.P.(C) No.
2211/2024.
3.12. On the basis of the aforesaid Ejahar, Vigilance P.S. Case No.
11/2025 came to be registered under Sections
120B/420/406/409/468/471 of the Indian Penal Code, read with Sections
13(1)(a)/13(2)/12 of the Prevention of Corruption Act, 1988.
3.13. It is the case of the petitioner that the forwarding of the
departmental reports for registration of the FIR, after the said reports
had already been interfered with by this Court, amounts to an abuse of
the process of law and is contrary to the judgment and order dated
27.02.2025. The petitioner has accordingly impleaded the informant,
namely, the Under Secretary to the Government of Assam, PHE
Department, as respondent No. 2, questioning the circumstances in
which the said reports were forwarded for registration of the criminal
case.
3.14. The petitioner initially challenged the FIR by filing W.P.(Crl.) No.
10/2026 under Article 226 of the Constitution of India. During the
pendency of the said writ petition, however, the Investigating Officer
submitted the charge-sheet and the learned trial Court took cognizance
of the offences. In view thereof, the petitioner sought permission to
withdraw the said writ petition with liberty to file a fresh petition. This
Court, vide order dated 11.05.2026, permitted withdrawal of W.P.(Crl.)
No. 10/2026 with liberty to file afresh. In the meantime, the concerned
Investigating Officer issued a notice dated 18.12.2025 requiring the

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petitioner to appear before him on 22.12.2025 and to abide by the
conditions stipulated therein. The petitioner appeared before the
Investigating Officer on 22.12.2025, complied with the conditions and
cooperated with the investigation. His statement was also recorded.
3.15. Apprehending arrest in connection with Vigilance P.S. Case No.
11/2025, the petitioner approached this Court by filing A.B. No. 101/2026
seeking anticipatory bail. This Court, vide order dated 21.01.2026,
granted interim pre-arrest bail to the petitioner and directed him to
appear before the Investigating Officer within seven days. Subsequently,
vide order dated 12.02.2026, the said bail application was disposed of by
making the order dated 21.01.2026 absolute.
3.16. It is the case of the petitioner that, although he was due to retire
from service in February 2026, owing to correction of his date of birth by
the department, he was ultimately permitted to retire from service on
31.03.2026 as Superintending Engineer, PHE, Hailakandi.
3.17. Upon completion of the investigation, the Investigating Officer
submitted the charge-sheet before the learned Court of the Special
Judge, Kamrup (M) being Charge-Sheet No. 01/2026 dated 21.02.2026,
which was registered as Special Case No. 19/2026. On the basis of the
charge-sheet, the learned Special Judge, Kamrup (M), vide order dated
21.02.2026, took cognizance of the offences under Sections
120B/420/406/409/468/471 of the Indian Penal Code read with Sections
13(1)(a)/13(2)/12 of the Prevention of Corruption Act, 1988. The case
was fixed for appearance on 04.04.2026. Thereafter, vide order dated
04.04.2026, the learned Court below fixed the case for appearance on
25.05.2026.

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3.18. The principal grievance of the petitioner is that the FIR in Vigilance
P.S. Case No. 11/2025 was registered on the basis of the report dated
27.04.2022 and the departmental enquiry report dated 21.02.2023, both
of which, according to him, had ceased to have operative effect after the
judgment and order dated 27.02.2025 passed by this Court in W.P.(C) No.
2211/2024. It is pointed out that this Court had directed the department
to conduct a fresh enquiry within six months and that the fresh enquiry
has not yet been completed. The petitioner, therefore, maintains that the
allegations based upon the earlier reports are non-est in the eye of law.
4. Being aggrieved by the registration of the aforesaid FIR, the consequential
submission of charge-sheet and the order dated 21.02.2026 passed by the
learned Special Judge, Kamrup (M), taking cognizance in Special Case No.
19/2026, the petitioner has approached this Court by filing the present petition
under Section 528 of the BNSS, seeking quashing of the entire criminal
proceeding.
5. Mr. B. K. Das, learned counsel for the petitioner, submits that the very
foundation of the present criminal proceeding is the report dated 27.04.2022
and the departmental enquiry report dated 21.02.2023, which were relied upon
for lodging the Ejahar and setting the criminal law in motion. It is submitted
that both the aforesaid reports had already been interfered with by this Court
vide judgment and order dated 27.02.2025 passed in W.P.(C) No. 2211/2024.
6. The learned counsel for the petitioner submits that, by the judgment dated
27.02.2025, this Court had set aside the punishment order dated 14.12.2023
and directed reinstatement of the petitioner, while granting liberty to the
department to conduct a fresh enquiry. It is submitted that the earlier enquiry
report, therefore, could not have been treated as a subsisting and operative

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foundation for initiating a criminal proceeding against the petitioner, particularly
when the fresh enquiry contemplated by the said judgment has not yet been
completed. It is further submitted that the report dated 27.04.2022 itself did not
recommend registration of an FIR and merely suggested initiation of
departmental proceedings and the subsequent use of the said report and the
earlier departmental enquiry report for lodging the Ejahar, despite the judgment
of this Court dated 27.02.2025, is contrary to the effect and intent of the said
judgment.
7. The learned counsel submits that the petitioner had no independent role in
identification of beneficiaries or issuance of work orders. Under the scheme, the
GWSC was responsible for identification of beneficiaries, while the authorized
Sectional Officer/Junior Engineer, PHE, Belsor, issued the work orders to the
concerned NGOs. After completion of the works, verification reports were issued
by the Member Secretary of the GPWSC and the Member Secretary of the
APWSC. It is submitted that the bills were thereafter forwarded by the Assistant
Executive Engineer, PHE, Belsor Division, to the petitioner in his capacity as
Member Secretary of the DWSC-cum-Executive Engineer, Nalbari Division,
accompanied by the work orders and verification reports. The petitioner
processed the bills subject to the approval of the Deputy Commissioner, Nalbari,
who was the Chairperson of the DWSC. The learned counsel submits that, in the
circumstances, there was no occasion for the petitioner to suspect the
genuineness of the bills forwarded by the Assistant Executive Engineer. Mere
processing of bills in the course of official duties, particularly when supported by
work orders and verification reports and subject to approval of the competent
authority, cannot by itself establish misappropriation or the other offences
alleged against the petitioner.

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8. The learned counsel submits that the allegations forming the subject
matter of the departmental proceeding and those forming the basis of the
criminal proceeding are substantially the same. The departmental proceeding
had culminated in dismissal of the petitioner, which was subsequently set aside
by this Court. It is, therefore, contended that continuation of the criminal
proceeding on the same allegations, particularly, on the basis of the very reports
which had already been interfered with, would amount to an abuse of the
process of the Court.
9. Placing reliance upon P.S. Rajya vs. State of Bihar , reported in (1996) 9
SCC 1 , particularly paragraphs 17, 18, 19 and 23, the learned counsel submits
that where the departmental and criminal proceedings arise out of the same set
of allegations, the fate of the departmental proceeding is a relevant
consideration in examining whether continuation of the criminal proceeding
would amount to an abuse of the process of law.
10. The learned counsel submits that the reliance upon (supra) is
P.S. Rajya
not merely on the ground that the petitioner had succeeded in the departmental
proceeding. Rather, the petitioner’s case is that the departmental enquiry report
itself, which formed the basis of the earlier departmental action, was interfered
with by this Court and was thereafter relied upon as a foundation for the
criminal proceeding.
11. The learned counsel has also places reliance upon State of Bihar &
Others vs. Ashok Kumar Singh & Another , reported in (2014) 13 SCC 81 ,
particularly paragraphs 28 and 29, and submits that where the very enquiry or
material forming the foundation of a subsequent proceeding has ceased to have
legal efficacy, a consequential proceeding founded upon such material cannot

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be permitted to continue.
12. Reliance has also been placed upon State of Punjab vs. Davinder Pal
Singh Bhullar & Others , reported in (2011) 14 SCC 770 , particularly
paragraphs 107 and 108. The learned counsel submits that the principle of
sublato fundamento cadit opus , namely, that once the foundation is removed,
the consequential structure cannot survive, is attracted to the present case, as
the report dated 28.04.2022 and the departmental enquiry report dated
21.02.2023, which according to the petitioner constituted the foundation of the
departmental proceeding and were subsequently relied upon for registration of
the FIR, had already been interfered with by this Court, vide judgment and
order dated 27.02.2025. It is, therefore, submitted that the consequential FIR,
charge-sheet and order taking cognizance, founded upon the said reports,
cannot be permitted to survive.
13. It is submitted that the subsequent departmental proceedings also
demonstrate that the matter had not attained finality. The Show-Cause Notice
dated 23.05.2025, issued on the same charges after the petitioner’s
reinstatement, was cancelled by the department on 25.06.2025. The
subsequent Show-Cause Notice dated 30.07.2025 was stayed by this Court, vide
order dated 06.08.2025 and the writ petition challenging the same is still
pending.
14. The learned counsel submits that, instead of proceeding in accordance
with the liberty granted by this Court for holding a fresh enquiry, the authorities
relied upon the earlier reports for setting the criminal law in motion. Learned
counsel submits that such action renders the criminal proceeding vulnerable to
interference in exercise of the inherent jurisdiction of this Court.

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15. The learned counsel further submits that the entire process leading to
registration of the FIR is also actuated by considerations. It is pointed
mala fide
out that the petitioner was at the top of the cadre of Superintending Engineer,
PHE, Assam, for consideration for promotion to the post of Additional Chief
Engineer, PHE, Assam, as reflected from the notification dated 06.05.2025, but
despite his reinstatement, he was not granted promotion on account of the
pending litigations. It is contended that the criminal proceeding was intended to
prejudice his service prospects.
16. On the merits of the allegations, the learned counsel submits that the
work orders for construction of IHHL were issued by the Member Secretary of
the GWSC-cum-Junior Engineer, PHE, Belsor Division, in the year 2020. The
work completion certificates were issued by the Member Secretary of the
APWSC-cum-Assistant Executive Engineer, Belsor Sub-Division, and the Member
Secretary of the GWSC-cum-Junior Engineer, PHE, Belsor Division, in the year
2021. It is further submitted that the bills were thereafter forwarded for
approval to the Chairperson-cum-Deputy Commissioner, Nalbari and the
payments were made only after the requisite approval had been obtained. The
learned counsel, therefore, submits that the petitioner cannot be held
responsible for any alleged irregularity merely because the bills were processed
by him in his official capacity.
17. The learned counsel submits that the petitioner had no independent role in
the selection of beneficiaries, issuance of work orders or certification of
completion of the works. It is contended that there is no specific material
disclosing any act on the part of the petitioner constituting criminal conspiracy,
cheating, criminal breach of trust, forgery or use of forged documents. It is
further submitted that the works under the Swachh Bharat Mission (Gramin),

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Nalbari, had been completed and the payments had been made in the year
2021, whereas the FIR came to be registered only on 02.05.2025. The learned
counsel submits that the delay of more than four years in setting the criminal
law in motion has not been satisfactorily explained and assumes significance in
the background of the earlier departmental proceedings.
18. The learned counsel further submits that the petitioner has fully
cooperated with the investigation. Pursuant to the notice dated 18.12.2025, he
appeared before the Investigating Officer on 22.12.2025, complied with the
conditions stipulated in the notice and his statement was recorded. It is
submitted that the petitioner has not avoided or obstructed the investigation in
any manner.
19. It is submitted that, even if a full-fledged trial were permitted to continue
on the basis of the materials presently available, the possibility of conviction of
the petitioner is remote, particularly when the two departmental reports relied
upon for initiating the criminal proceeding had already been interfered with by
this Court, the continuation of the proceeding in such circumstances would
cause unnecessary harassment to the petitioner and result in wastage of judicial
time.
20. The learned counsel also submits that the informant, being an Under
Secretary to the Government of Assam, PHE Department, was required to act in
accordance with the judgment and order dated 27.02.2025 passed by this
Court. He submits that forwarding the earlier departmental reports for
registration of the FIR, despite the said judgment, amounts to undermining the
effect of the order passed by this Court and constitutes an abuse of the process
of law.

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21. It is submitted that the criminal law cannot be set into motion mechanically
and that summoning an individual to face a criminal proceeding is a serious
matter. The learned counsel submitted that where the very foundation upon
which the criminal proceeding rests is found to be unsustainable, the
consequential charge-sheet and order taking cognizance cannot be permitted to
stand.

22. The learned counsel, therefore, submits that the present case warrants
exercise of the inherent jurisdiction of this Court under Section 528 of the BNSS.
It is accordingly prayed that the FIR in Vigilance P.S. Case No. 11/2025, the
consequential charge-sheet and the order dated 21.02.2026 passed by the
learned Special Judge, Kamrup (M), taking cognizance in Special Case No.
19/2026, be quashed, as continuation of the criminal proceeding would amount
to an abuse of the process of the Court and would not serve the ends of justice.
23. Mr. P. Kataki, learned Senior Counsel/Standing Counsel, C.M. Vigilance Cell,
opposing the prayer made in the present petition, submits that the petitioner is
essentially seeking an adjudication of disputed questions of fact in exercise of
the inherent jurisdiction of this Court under Section 528 of the BNSS, which is
impermissible at this stage. It is submitted that the allegations in the Vigilance
P.S. Case relate to the processing and release of payments in respect of IHHLs
under the Swachh Bharat Mission (Gramin), and the precise role of the
petitioner, including the manner in which the relevant bills were processed and
payments were authorised, are matters requiring proper investigation. The
contention that the petitioner had merely processed the bills on the basis of
work orders and verification and thereafter placed the same before the
competent authority for approval cannot, at the threshold, be accepted as a
ground for quashing the criminal proceeding. Learned Senior Counsel further

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submits that the departmental proceeding initiated against the petitioner on the
same allegations was set aside by order dated 27.02.2025, with liberty to initiate
a fresh enquiry, but such order does not exonerate the petitioner from criminal
liability or foreclose an independent criminal investigation. The departmental
and criminal proceedings operate in distinct fields, and the setting aside of the
departmental proceeding cannot, in the absence of an adjudication by the
competent criminal Court, be treated as a determination of the petitioner's
innocence. The reliance placed by the petitioner upon the reports dated
27.04.2022 and 21.02.2023 is also misplaced, as such reports cannot foreclose
the investigating agency from examining subsequent materials or conducting
investigation in accordance with law. Likewise, the alleged delay in registration
of the FIR, by itself, cannot furnish a ground for quashing the proceeding, as
the circumstances leading to registration of the FIR and the materials
subsequently collected are matters for investigation.
24. Learned Senior Counsel has placed reliance to the case of G.M. Tank vs.
State of Gujarat and Others , reported in (2006) 5 SCC 446 , and he submits
that the criminal proceeding and Departmental proceeding are two independent
proceedings. Therefore, even if the Departmental proceeding is not completed,
the criminal proceeding can independently go ahead.
25. Learned Senior Counsel has also placed reliance upon State of Haryana
and Others vs. Bhajan Lal and Others , reported in 1992 Supp. (1) SCC
335 and submits that although certain categories have been indicated where
the extraordinary jurisdiction of the High Court may be exercised to prevent
abuse of the process of law, the present case does not fall within any such
category, as the allegations in the FIR, taken at their face value, disclose
cognizable offences and cannot be said to be absurd or inherently improbable.

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26. Learned Senior Counsel has submitted that the petitioner's allegation that
the criminal proceeding has been initiated with a intention to
mala fide
adversely affect his service career or promotion is merely an assertion
unsupported by any cogent material and the fact that pendency of the criminal
proceeding may have consequences upon his service cannot, by itself, constitute
a ground for quashing the proceeding. Learned Senior Counsel has further
submitted that the petitioner's cooperation with the investigation is also not a
ground for quashing the FIR, particularly when the investigation has not yet
reached its logical conclusion. It is, therefore, urged that the petitioner is
essentially seeking an appreciation of his defence and an examination of the
correctness of the allegations at the investigation stage, which is impermissible
and that no exceptional circumstance warranting exercise of the inherent
jurisdiction of this Court under Section 528 of the BNSS has been made out. The
petition is, accordingly, liable to be dismissed.
26. Mr. A. Deka, learned counsel appearing for respondent No. 2/informant,
submits that respondent No. 2 adopts and concurs with the submissions
advanced by Mr. P. Kataki, learned Senior Counsel/Standing Counsel, C.M.
Vigilance Cell. Learned counsel submits that the allegations in the FIR require
proper investigation and that the grounds urged by the petitioner do not
warrant interference at this stage. He, accordingly, opposes the prayer for
quashing the criminal proceeding.
27. I have heard the submissions advanced by the learned counsel appearing
for the parties and have perused the materials available on record.
28. The case of the petitioner, in substance, is that his role was confined to
processing the bills relating to IHHLs under the Swachh Bharat Mission

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(Gramin), on the basis of the work orders and verification reports, which were
thereafter placed before the competent authority for approval. The petitioner
has also relied upon the reports dated 27.04.2022 and 21.02.2023 and
contended that the said reports did not attribute any culpability to him. It is
further contended that a departmental proceeding was initiated against him on
the basis of the same allegations, which was subsequently set aside by order
dated 27.02.2025 with liberty to initiate a fresh enquiry. It is contended that in
view of the aforesaid circumstances, continuation of the criminal proceeding
would amount to an abuse of the process of law.
29. The allegations forming the subject matter of the Vigilance P.S. Case relate
to the processing and release of payments in respect of IHHLs under the
Swachh Bharat Mission (Gramin). The precise role of the petitioner, including the
manner in which the relevant bills were processed, the nature and extent of
verification undertaken, the circumstances in which the bills were placed before
the competent authority and the circumstances surrounding the authorization
and release of the payments, are matters which require investigation. Whether
the petitioner had acted merely in discharge of his official duties or whether he
had any role in the alleged irregularities cannot be determined merely on the
basis of the defence set up by him in the present proceeding.
30. The fact that the departmental proceeding initiated against the petitioner
was set aside by order dated 27.02.2025, with liberty to initiate a fresh enquiry,
also does not, by itself, exonerate the petitioner from the criminal allegations. A
departmental proceeding and a criminal proceeding operate in distinct fields and
the setting aside of the departmental proceeding cannot be treated as an
adjudication of the petitioner’s innocence in the criminal case. In the present
case, there has been no adjudication in the fresh departmental proceeding, as

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the petitioner has challenged the same by filing a writ petition, i.e., WP(C) No.
4414 of 2025, wherein the continuation of the proceeding has been stayed and
the writ petition is still pending.

31. The alleged delay in registration of the FIR also does not, by itself, is a
sufficient ground for quashing the criminal proceeding. The circumstances
leading to the registration of the FIR, the materials which came to the notice of
the competent authority and the subsequent steps taken by the investigating
agency are matters which may be examined in the course of investigation.
Likewise, the allegation that the criminal proceeding has been initiated with a
mala fide intention to adversely affect the petitioner's service career or
promotion is, at this stage, an assertion which is not shown to be supported by
such cogent materials as would establish that the proceeding has been
instituted for an oblique or extraneous purpose. The mere possibility that
pendency of a criminal proceeding may have consequences upon the
petitioner's service or promotion cannot, by itself, constitute a ground for
quashing an otherwise sustainable criminal investigation. Similarly, the fact that
the petitioner has cooperated with the investigation cannot, by itself, furnish a
ground for terminating the investigation before its logical conclusion.
32. It is seen in the instant case that an enquiry was conducted by the Deputy
Commissioner (now District Commissioner), Nalbari into the allegation of
misappropriation of Government fund by the petitioner. On conclusion of the
enquiry, conducted through the Superintendent Engineer, PHE, Nalbari Circle, a
report was submitted on 04.04.2022 and on that basis on 13.06.2022,
Commissioner and Secretary, Government of Assam, PHE initiated the
Departmental proceeding against the petitioner by issuing the Show Cause
Notice. But the Departmental proceeding and subsequent dismissal were set

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aside, vide order dated 27.02.2025 in WP(C) No. 2211 of 2024 by this Court due
to the fact that no opportunity was given to the petitioner to explain his case.
Therefore, a fresh Departmental proceeding was allowed against the petitioner.
But the aforesaid order did not set aside the initial enquiry dated 04.04.2022 on
the basis of which the departmental proceeding was initiated. The FIR in the
instant case, has been filed on the basis of the aforesaid enquiry report and this
Court does not find any illegality in filing of the FIR. As has been discussed,
there is no bar in both criminal and departmental proceeding going together.
33. This Court has considered the case relied upon by the learned counsel
appearing for the petitioner. In the case of P. S. Rajya (supra), the facts are
distinguishable from the instant case as in the P.S. Rajya (supra), a
departmental proceeding on similar facts, had exonerated the petitioner but the
same is not the fact in this instant case. There is no exoneration from
departmental proceeding in the instant case. Similarly, in the case of Devinder
Pal Singh Bhullar (supra), the Hon’ble Supreme Court held that if the initial
order itself is bad, than the subsequent actions cannot be sustained. However,
in the instant case, the initial Departmental proceeding was set aside only on
the technical ground and fresh enquiry was directed to be conducted following
proper procedure as per law. But the initial enquiry report dated 04.04.2022 was
not set aside. This Court has also taken into consideration of the case of
Ashok
(supra) wherein the Hon’ble Supreme Court held that the criminal
Kr. Singh
proceeding to be bad due to the fact that the vigilance enquiry was not
completed within the specified time in spite of the clear direction of the Hon’ble
High Court. However, in the instant case, the departmental proceeding could not
be completed due to stay order passed by the High Court. Therefore, the case
relied on by the learned counsel for the petitioner are of no help to the

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petitioner in the instant case.
34. The principles governing exercise of the extraordinary jurisdiction of this
Court under Section 528 of the BNSS, as laid down by the Hon'ble Supreme
Court in State of Haryana and Others v. Bhajan Lal and Others (supra) are
well settled. Such jurisdiction is to be exercised sparingly and with
circumspection and interference at the threshold is warranted only in cases
where the allegations, even if taken at their face value and accepted in their
entirety, do not disclose the commission of any offence or where the proceeding
otherwise falls within the recognized parameters warranting interference to
prevent abuse of the process of law. In the present case, on a consideration of
the allegations in the FIR, this Court is unable to hold that the allegations are so
inherently improbable that no prudent person could ever reach a conclusion that
an offence has been committed. The case also does not, at this stage, appear to
be one where the criminal proceeding is manifestly attended with mala fides or
has been instituted solely for an oblique purpose.
35. On an overall consideration of the matter, this Court is of the considered
opinion that the petitioner is essentially seeking an examination of his defence,
an appreciation of the materials relied upon by him and a determination of
disputed questions of fact, which exercise cannot appropriately be undertaken
at the stage of investigation. The materials placed before this Court do not
disclose any exceptional circumstance warranting exercise of the inherent
jurisdiction under Section 528 of the BNSS.
36. Accordingly, the instant criminal petition stands dismissed.
JUDGE

Jumbi Bam, Private Secretary