Allowed

Sushil Kumar Agarwal And Ors. v. State of Jharkhand

Jharkhand HC5 Apr 2016Cr.M.P./947/2005

Case brief

AI extract

What is this about?

The High Court of Jharkhand allowed an application to quash criminal proceedings under Case No. 73 of 2005, holding that it was an impermissible second FIR arising as a consequence of the earlier Case No. 31 of 2005, which had already resulted in the acquittal of the petitioners.

What did the court decide?

The entire criminal proceeding in connection with Balidih P.S. Case No. 73 of 2005 pending before the learned Judicial Magistrate, Bokaro is quashed.

Sushil Kumar Agarwal And Ors. Vs State of Jharkhand — Quashing and FIR | Jharkhand HC (2016)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 947 of 2005

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Sushil Kumar Agrawal

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Kanta Devi

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Pawan Kumar Agrawal ... Petitioners Versus

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The State of Jharkhand … Opposite Party ---

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CORAM : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY

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--For the Petitioners : Mr. Rajesh Kumar, Advocate For the State : Mr. Avinesh Kumar, APP ---

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C.A.V. On 28.01.2016 Delivered on 05.04.2016

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Rongon Mukhopadhyay, J. In this application, the petitioners have prayed for quashing the entire criminal proceedings including the First Information Report (F.I.R.) in connection with Balidih P.S. Case No. 73 of 2005 (G.R. No. 831 of 2005), which has been instituted for the offence punishable u/s 420, 467, 468, 471 and 120B of the Indian Penal Code (I.P.C.).

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2 . The prosecution story as would appear from the F.I.R. instituted on the basis of the written statement of the Sub Inspector of Police, Balidih P.S. is to the effect that during the course of investigation of Balidih P.S. Case No. 31 of 2005 which was registered for the offences punishable u/s 414 and 120B I.P.C., certain documents were seized and on the basis of the same a seizure list was prepared. It has been alleged that on verification of the documents seized, the same were found to be forged and were prepared by the petitioners No. 1 and 2 who are Proprietor of M/ s. Hanuman Alloys Private Ltd. in connivance with petitioner No. 3 who is the sole administrator of M/s. Hanuman Alloys Private Ltd. along with proprietors of Shree Steels, Balidih and others. It has been alleged that the forged documents were created so as to commit fraud in the transaction of scrap iron and also to evade tax. Based on the aforesaid allegation, Balidih P.S. Case No. 73 of 2005 was instituted.

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3 . Heard Mr. Rajesh Kumar, learned counsel appearing for the petitioners and Mr. Avinesh Kumar, learned APP appearing for the State. 4 . It has been submitted by learned counsel for the petitioners that the company premises which was raided by the police on 28.04.2005 had not even started its production and the entire quantity of the iron scrap

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materials have been purchased from various places on the basis of valid papers and the allegation that out of the said quantity only 20 MT was found to be stolen is neither tenable nor believable. It has further been

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submitted that admittedly Balidih P.S. Case No. 73 of 2005 was instituted based upon the investigation conducted in Balidih P.S. Case No. 31 of 2005 and not only the present case, another case being Balidih P.S. Case No. 72 of 2005 was also instituted, which is not permissible in the eye of law, as both the cases are consequence of the investigation in Balidih P.S. Case No. 31 of 2005. Learned counsel, therefore, submits that the petitioners cannot be made to face separate trials on the basis of a separate investigation, although the investigation should have been one and the same and should have been confined to Balidih P.S. Case No. 31 of 2005 itself. In support of his contention learned counsel for the petitioner has referred the judgments of the Hon’ble Supreme Court in the cases of T.T. Antony v. State of Kerala, (2001) 6 SCC 181 reported in (2001) 6 SCC 181 , Babu Bhai v. State of Gujarat & others reported in (2010) 12 SCC 254 and Amitbhai Anilchandra Shah v. CBI reported in (2013) 6 SCC 348 .

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5 . Countering the arguments of the learned counsel for the petitioners, Mr. Avinesh Kumar, learned A.P.P. appearing for the State has submitted that the documents, which were found to be forged and fabricated at the instance of the petitioners, rightly resulted in institution of separate F.I.Rs., as the incidents are separate and distinct and it cannot be said that Balidih P.S. Case No. 73 of 2005 is consequence to the investigation conducted in Balidih P.S. Case No. 31 of 2005. In the background of the aforesaid submissions, learned A.P.P. has submitted that the proceedings against the petitioners should not be stifled or stalled at the threshold and such being the position, the present application is liable to be dismissed.

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6 . Although various points have been raised by the learned counsel for the petitioners, but such points cannot be decided in a proceeding u/s 482 of the Code of Criminal Procedure as they are related his defence. However, as regards, the institution of Balidih P.S. Case No. 73 of 2005, as a result of the investigation conducted in Balidih P.S. Case No. 31 of 2005, the same has to be considered in the backdrop of the law laid down by the Hon’ble Supreme Court in the cases referred to by the learned counsel for the petitioners.

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7 . Admittedly, Balidih P.S. case No. 31 of 2005 was registered against the petitioners for the offence u/s 414/120B of the I.P.C. It has been alleged that in Balidih P.S. Case No. 31 of 2005 at the time of raid documents were sought for from the employees of M/s. Hanuman Alloys

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Private Ltd. with respect to ‘Chakri’, but no documents were produced and it was apprehended that the said scrap materials were stolen property which were kept concealed. The scrap materials were seized and the F.I.R. was instituted. The documents which were subsequently seized were found to be forged and the same were being illegally used in the business for scrap. The written report of the informant in Balidih P.S. Case No. 73 of 2005 suggests that investigation into Balidih P.S. Case No. 31 of 2005 was not concluded and the informant was seized with the investigation of the said case. It thus appears that Balidih P.S. Case No. 73 of 2005 is an offshoot of Balidih P.S. Case No. 31 of 2005. 8 . In the case of T.T. Antony v. State of Kerala, (2001) 6 SCC 181 , it has held as follows:-

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"19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC.

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20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC."

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In the case of Babu Bhai v. State of Gujrat and others reported in

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(2010) 12 SCC 254 it has been held thus:-

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" 20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 CrPC is a very important

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4 .

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document. It is the first information of a cognizable offence recorded by the officer in charge of the police station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. Thus, it is quite possible that more than one piece of information be given to the police officer in charge of the police station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the first information report will be statements falling under Section 162 CrPC. “21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted”.

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In the case of Amitbhai Anilchandra Shah v. CBI reported in

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(2013) 6 SCC 348 it has been held as follows:-

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"38. Mr Raval, learned ASG, by referring T.T. Antony submitted that the said principles are not applicable and relevant to the facts and circumstances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. The learned ASG further pointed out that in the present case, there are two distinct incidents/occurrences, inasmuch as one being the conspiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati — a potential witness to the earlier conspiracy to murder Sohrabuddin. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making registration of fresh FIR impermissible and violative of Article 21 of the Constitution is reiterated and reaffirmed in the following subsequent decisions of this Court: (1) Upkar Singh v. Ved Prakash (2) Babubhai v. State of Gujarat, (3) Chirra Shivraj v. State of A.P., and (4) C. Muniappan v. State of T.N. In C. Muniappan this Court explained the “consequence test” i.e. if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR."

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9 . What thus falls from the above is that there cannot be two F.I.Rs. for the same incident or for an incident which is the consequence of the earlier case instituted. As has been revealed in the present case, the allegation

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made in Balidih P.S. Case No. 73 of 2005 had a huge nexus with Balidih P.S. Case No. 31 of 2005 and therefore, the subsequent F.I.R. is a consequence of the investigation carried out in Balidih P.S. Case No. 31 of 2005. The investigating officer instead of instituting separate cases on account of investigation which he was conducting in Balidih P.S. Case No. 31 of 2005, could have filed a single charge-sheet in the earliest case instead of lodging F.I.Rs. at every stage of investigation.

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10 . In course of hearing of the present application, a status report was called for from the learned trial court with respect to the stage of Balidih P.S. Case No. 31 of 2005 and from the report it appears that the accused persons have been acquitted on 16.07.2011 itself. It would not be justifiable to permit the petitioners to face the rigours of trial in Balidih P.S. Case No. 73 of 2005, as the same is an offshoot of Balidih P.S. Case No. 31 of 2005 in which the petitioners have already been acquitted.

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11 . Therefore, by applying the test of ‘sameness’ and ‘consequenceness’, as has been held in the cases referred to above and juxtaposing the facts with the law laid down by the Hon’ble Supreme Court the continuance of criminal proceeding against the petitioners would be an abuse of process of court and if allowed the same would lead to a miscarriage of justice.

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12 . Consequent to what has been discussed above, this application is allowed and the entire criminal proceeding in connection with Balidih P.S. Case No. 73 of 2005 (G.R. No. 831 of 2005), pending before the learned Judicial Magistrate, Bokaro is quashed.

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(RONGON MUKHOPADHYAY, J.)

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Sushil Kumar Agarwal And Ors. v. State of Jharkhand

Case brief

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Sushil Kumar Agarwal And Ors. v. State of Jharkhand

Case brief

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