Karnataka High Court
L C Nagaraja vs The State Of Central Bureau Of ... on 24 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 773
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.8379/2019
BETWEEN:
SRI. L.C. NAGARAJA S/O. LINGAPPA,
AGED ABOUT 51 YEARS, OCC. ASSISTNAT COMMISSIONER
(REVENUE), BENGALURU NORTH SUB DIVISION,
BENGALURU NOW UNDER SUSPENSION AND
R/AT "JANAMUKHI", PARAMANNA LAYOUT,
B.H.ROAD, NELAMANGALA 562123,
BENGALURU NORTH DISTRICT.
...PETITIONER
(BY SRI.C.H.JADHAV, SENIOR COUNSEL FOR
SMT.RASHMI JADHAV, ADV.)
AND:
1. THE STATE BY THE CENTRAL BUREAU OF
INVESTIGATION, GANGANAGAR 560032, REP. BY ITS
STANDING COUNSEL, BENGALURU.
2. MOHAMMED KHALID AHMED S/O. LATE BASHEER AHMED,
AGED ABOUT 56 YEARS, R/AT FLAT NO."A", GROUND
FLOOR, IVY COTTAGE, 2ND MAIN ROAD, KAVAL
BYRASANDRA, R.T.NAGAR POST, BENGALURU 560032.
...RESPONDENTS
(BY SRI.PRASANNA KUMAR P., ADV. FOR R1,
R2 DELETED VIDE COURT ORDER DATED 24.01.2020)
THIS CRL.P. IS FILED UNDER SEC. 482 OF CR.P.C.
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO
QUASH FIR REGISTERED IN R.C. NO.19A/2019 REGISTERED BY
R.NO.1 POLICE AGAINST THE PETITIONER FOR OFFENCES
UNDER SEC.7, 7A, 8 & 12 OF AMENDED PREVENTION OF
CORRUPTION ACT, 2018 & QUASH ENTIRE PROCEEDINGS.
THIS CRL.P. HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF ORDER ON 27.02.2020 AT PRINCIPAL
BENCH, BENGALURU AND COMING ON FOR PRONOUNCEMENT
OF ORDER AT DHARWAD BENCH, THIS DAY, THE COURT MADE
THE FOLLOWING:
:2:
ORDER
This petition has been filed by the petitioner - accused No.2 under Section 482 of Cr.P.C. praying this Court to quash the F.I.R. in R.C. No.19(A)/2019 for the offences punishable under Sections 7, 7A, 8 and 12 of the amended Prevention of Corruption Act, 2018 (hereinafter referred to as 'P.C. Act' for short).
2. I have heard the learned Senior counsel Sri.C.H.Jadhav for Smt. Rashmi Jadhav, advocate for the petitioner and Sri.Prasanna Kumar P., advocate for respondent No.1 - CBI.
3. Though this case was listed for admission, with the consent of the learned counsels appearing for the parties, the same has been taken up for final disposal.
4. The factual matrix of the case are that the petitioner - accused No.2 was working as an Assistant Commissioner (Revenue), Bengaluru North Sub-Division. By virtue of his position as Assistant Commissioner, was competent authority under the provisions of the Karnataka Protection of Interest of Depositors in Financial :3: Establishment Act, 2004 (hereinafter referred to as 'KPID Act' for short). The said assignment was in pursuance of Notification dated 10.04.2018 issued by the Government of Karnataka. Deputy Commissioner, Bengaluru directed the petitioner - accused No.2 to interact with City Police and submit a report by issuing necessary direction to the subordinate Tahasildars after enquiring into the financial irregularities committed by a Company viz., "I-Monitory Advisor" (I-MA for short). In pursuance of the said direction, he issued direction to all the Tahasildaras and the local Police to verify about the complaints registered and the irregularities in financial transactions of I-MA Company. In pursuance of the said direction, the Deputy Commissioner of Police addressed a letter dated 19.02.2019 stating that the petitioner - accused No.2 should examine the situation and send a report to the Government. Subsequently, by order dated 01.02.2019, the Government withdrawn the notification dated 10.04.2018 appointing the Assistant Commissioners, as per Section 5 of the K.P.I.D. Act. Though he was not competent and the power has been withdrawn by the :4: Government, subsequently the petitioner - accused No.2 given a report dated 08.03.2019 to the Principal Secretary to Government, Revenue Department stating that the Investigating Police, C.I.D., Special Cells and Economic Offences after thorough investigation has concluded stating that the Company has not received deposits and it has received only amounts by way of capital and as such, no action can be taken against the said Company "I-MA"
under the KPID Act.
5. Though the petitioner was not having any authority to submit such report with regard to the activities of I-MA Company, but the case has been registered against the accused No.1 in Crime No.73/2019 for the offences punishable under Sections 406 and 420 of IPC. In that case also, the petitioner - accused No.2 was erred as accused. Subsequently, one more case has been registered in Crime No.25/2019 against the petitioner and the other accused persons under the P.C. Act alleging that during his tenure, the petitioner - accused No.2 had received illegal gratification from I-MA Company and given a favourable report in favour of the Company to the Government, :5: despite the Company involved in illegal activities. The said case was transferred to C.B.I. for investigation and it was reregistered in Crime No.19(A)/2019 for the offences punishable under Section 7, 7A, 8 and 12 of the P.C. Act.
6. Being aggrieved by the initiation of the proceedings, the petitioner - accused is before this Court.
7. It is the submission of the learned Senior counsel that on the same set of allegations, the respondent has registered two cases and the registration of the present case is wholly illegal and unwarranted as against the petitioner - accused No.2. It is his further submission that the registration of the case is hit by the principles of double jeopardy under Article 20 of the Constitution of India. It is his further submission that Section 173(8) of Cr.P.C., it restricts the right of the investigation to register another F.I.R. and to investigate the case. At the most, the Investigating Agency ought to have been filed a supplementary charge sheet. It is his further submission that it is arising out of the same transaction, same facts and it is a continuance of offence, :6: it cannot be bifurcated and two F.I.Rs. cannot be registered as against the petitioner - accused merely because that the accused is liable to be penalized for other offences, no separate case can be registered. It is his further submission that the registration of the case is nothing but to harass the petitioner - accused and it is going to cause inconvenience to the accused, he has to face two trials on similar set of facts and it is going to cause hardship to the accused and it is also waste of judicial time. It is his further submission that based upon the report of the Police, the petitioner - accused has given the report to the Government and it is not a false report as contended by the prosecution. It is his further submission that the registration of the second F.I.R. under Section 154 of the Cr.P.C. is not valid and he cannot further investigate the case. It is his further submission, if at all any extra evidence is collected as against the petitioner - accused, Cr.P.C. does not preclude Investigating Agency to seek the leave of the Court and make further investigations and file a further report or additional report as contemplated under Section 173(8) of Cr.P.C. In order to substantiate his such :7: argument, he has relied upon the decision in the case of T.T.Antony vs. State of Kerala and others reported in (2001) 6 SCC 181.
8. It is his further submission that filing of a fresh charge sheet for the same and continuing offence is contrary to the provisions of Cr.P.C. and that it is a procedural irregularity. Only the earliest information regarding the commission of a cognizable offence, it is going to satisfy the requirement as contemplated under Section 154 of Cr.P.C. and there cannot be no second F.I.R. and there cannot be any further cognizance of the case. In order to substantiate his contention, he has relied upon the decision in the case of Amitbhai Anilchandra Shah vs. Central Bureau of Investigation and another reported in (2013) 6 SCC 348.
9. He further contended that if on the same incident, in respect of the same occurrence or as in regard to the incident which are two or more parts of the same transaction, then under such circumstances, registration of second F.I.R. is not accepted. In that light, he has relied :8: upon the decision in the case of Surender Kaushik and others vs. State of Uttar Pradesh and others reported in (2013) 5 SCC 148.
10. It is his further submission that as per Section 173(8) of Cr.P.C., it empowers the Investigating Agency for collection of further evidence and the same law has been declared by the Apex Court and the same has not been diluted at any time. In that light, he relied upon the decision in the case of Pradeep Ram vs. State of Jharkhand and another reported in 2019 SCC online (SC) 825.
11. It is his further submission that both offences under I.P.C. as well as under the Prevention of Corruption Act can be tried by a Single Judge and there will not be any prejudice to the prosecution. In that light, he relied upon the decision in the case of Essar Teleholdings Limited vs. Registrar General, Delhi High Court and others reported in (2013) 8 SCC 1. On these grounds, he prayed to allow the petition and to quash the proceedings.:9:
12. Per contra, the learned counsel appearing on behalf of the respondent, vehemently argued and submitted that earlier the case has been registered in Crime No.73/2019 and subsequently an offence has been committed under the Prevention of Corruption Act and as such, the case has been reregistered in R.C. No.14(A)/2019 and R.C. No.19(A)/2019 by A.C.B. Police.
It is his further submission that the matter pertaining to I- MA case is fully monitored, by the Division Bench in Writ Petition Nos.25469-85/2019, whereby A.C.B. has been granted permission for further investigation and accordingly, the said investigation is continued and the said aspect has also not been brought to the notice of the Court by the accused.
It is his further submission that even though by virtue of the Notification dated 10.04.2018, the powers conferred under Section 5 of the Act have been withdrawn, the petitioner - accused has given a false report stating that there is no material as against the accused to proceed with the matter and in order to make a favourable report, that he has taken huge amount. It is his further : 10 : submission that the petitioner - accused was not a competent authority to give the report and he has given a report contrary to the earlier report and thereby he has given a clean chit to the accused. It is his further submission that the petitioner - accused has received Rs.164 Crores in order to give the said report. This case is having an economical impact on the society. Under such circumstances, the petitioner - accused has not made out any good grounds to quash the proceedings.
13. It is his further submission that in exceptional cases, the second F.I.R. would lie. If during the course of investigation, a larger conspiracy is disclosed which was not part of the first F.I.R. In order to substantiate his said contention, he relied upon the same decision of the Hon'ble Apex Court in the case of Amitbhai Anilchandra Shah quoted supra. It is his further submission that when second investigation has been started independently which discloses wide range of offences and if second final report has been submitted the accused concerned can take necessary steps to club two cases together and trial can be held at one place and the trial can be concluded in this : 11 : behalf. It is his further submission that the cases can be transferred to give a logical end. In that light, he relied upon the decision in the case of Ram Lal Narang vs. State (Delhi Administration) reported in (1979) 2 SCC
322. He has also relied upon the decision in the case of Manoj Kumar vs. State of Uttarakhand reported in (2019) 5 SCC 667 and in the case of Chirag M. Pathak and others vs. Dollyben Kantilal Patel and others reported in (2018) 1 SCC 330. On these grounds, he prayed to dismiss the petition.
14. I have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records.
15. I have given my thoughtful consideration to the decisions quoted by the learned counsels appearing for the parties.
16. It is the contention of the learned counsel for the petitioner - accused that on the same fact, no second F.I.R. has to be registered and already the petitioner has been erred as an accused in Crime No.73/2019. It is his : 12 : further contention that the registration of the second F.I.R. is violation of Article 20 of the Constitution of India and it is hit by principle of double jeopardy. For the purpose of brevity, I quote Article 20 of the Constitution of India which reads as under:
"20. Protection in respect of conviction for offences.- (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself."
17. On close reading of the said Article, sub clause (2) it specifically protects the accused that he shall not be : 13 : prosecuted and punished for the same offence more than once. It is trite law that the sentence imposable on the date of the commission of the offence has to determine the sentence imposable on completion of the trial. What is prohibited is the conviction and the sentence in criminal proceedings and not the F.I.R. or registration of the F.I.R. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Ravindra Singh vs. State of Himachal Pradesh reported in AIR 2010 SC 199. In the instance case on hand, at this premature stage, the principles of double jeopardy is not applicable since both the F.I.R. are at investigation stage and the same are monitored by the Hon'ble Division Bench of this Court in Writ Petition Nos.25469-25485/2019. In that light, the contentions which are taken by the learned counsel for the petitioner has no force. It is rejected.
18. It is the contention of the learned counsel for the petitioner that the registration of the second F.I.R. under Section 154 of Cr.P.C. is not sustainable in law. It is his further submission that making further investigations and filing of the further report is also permitted under : 14 : Section 173(8) of Cr.P.C. In order to substantiate his contention, he has relied upon the decision in the case of T.T.Antony quoted supra, at para No.35, it has been observed as under:
"35. For the aforementioned reasons, the registration of the second FIR under Section 154 of Cr.P.C. on the basis of the letter of the Director General of Police as Crime No.268 of 1997 of Kuthuparamba Police Station is not valid and consequently the investigation made pursuant thereto is of no legal consequence, they are accordingly quashed. We hasten to add that this does not preclude the investigating agency from seeking leave of the Court in Crimes Nos.353 and 354 of 1994 for making further investigations and filing a further report or reports under Section 173(8) Cr.P.C. before the competent Magistrate in the said cases. In this view of the matter, we are not inclined to interfere with the judgment of the High Court under challenge insofar as it relates to quashing of Crime No. 268 of 1997 of Kuthuparamba Police Station against the ASP (R.A.Chandrasekhar); in all other aspects the impugned judgment of the High Court shall stand set aside.": 15 :
19. He has also relied upon one more decision of the Hon'ble Apex Court in the case of Amitbhai Anilchandra Shah quoted supra, at paragraphs Nos.36 and 58(1), (3), (5), (6) which reads as under:
"36. Now, let us consider the legal aspects raised by the petitioner Amit Shah as well as the CBI. The factual details which we have discussed in the earlier paragraphs show that right from the inception of entrustment of investigation to the CBI by order dated 12.01.2010 till filing of the charge sheet dated 04.09.2012, this Court has also treated the alleged fake encounter of Tulsiram Prajapati to be an outcome of one single conspiracy alleged to have been hatched in November 2005 which ultimately culminated in 2006. In such circumstances, the filing of the second FIR and a fresh charge sheet for the same is contrary to the provisions of the Code suggesting that the petitioner was not being investigated, prosecuted and tried "in accordance with law".
58.1. This Court accepting the plea of CBI in Narmada Bai that killing of Tulsiram Prajapati is part of the same series of cognizable offence forming part of the first FIR directed the CBI to "take over" the : 16 : investigation and did not grant the relief prayed for i.e., registration of a fresh FIR. Accordingly, filing of a fresh FIR by CBI is contrary to various decisions of this Court.
58.3. Even after filing of such a report, if he comes into possession of further information or material, there is no need to 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 which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. 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.
: 17 :
58.5. The First Information Report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.
58.6. In the case on hand, as explained in the earlier paragraphs, in our opinion, the second FIR was nothing but a consequence of the event which had taken place on 25.11.2005/26.11.2005. We have already concluded that this Court having reposed faith in the CBI accepted their contention that Tulsiram Prajapati encounter is a part of the same chain of events in which Sohrabuddin and Kausarbi were killed and directed the CBI to "take up" the investigation."
20. He has also relied upon the decision in the case of Pradeep Ram quoted supra and at paragraph Nos.34 and 35, it has been observed as under:
"34. This Court laid down that as per the scheme of Code of Criminal Procedure only the earliest or the first information report in regard to the commission of a cognizable offence satisfies the : 18 : requirements of FIR and there can be no second F.I.R. In paragraph No.20, following has been laid down:-
"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 Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. 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 Cr.P.C."
35. The same principle has been reiterated in Babubhai vs. State of Gujarat (supra) and Chirra Shivraj vs. State of Andhra Pradesh (supra). This Court in Amitbhai Anilchandra Shah vs. Central Bureau of Investigation (supra) had again occasion to consider the legality of second FIR. : 19 : After reviewing the earlier decisions under the heading "legal aspects as to permissibility/impermissibility of second FIR". This Court laid down following in paragraph Nos. 36 and 37:-
"36. Now, let us consider the legal aspects raised by the petitioner Amit Shah as well as CBI. The factual details which we have discussed in the earlier paragraphs show that right from the inception of entrustment of investigation to CBI by order dated 12-1-20104 till filing of the charge-sheet dated 4-9- 2012, this Court has also treated the alleged fake encounter of Tulsiram Prajapati to be an outcome of one single conspiracy alleged to have been hatched in November 2005 which ultimately culminated in 2006. In such circumstances, the filing of the second FIR and a fresh charge-sheet for the same is contrary to the provisions of the Code suggesting that the petitioner was not being investigated, prosecuted and tried "in accordance with law".
37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Antony3, this Court has categorically held that registration of second FIR (which is not a cross-case) is violative of Article 21 of the Constitution. The following conclusion in paras 19, 20 and 27 of that judgment : 20 : are relevant which read as under: (SCC pp. 196-97 & 200) "19. The scheme of Cr.P.C. is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 Cr.P.C. 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 Cr.P.C., as the case may be, and forward his report to the Magistrate concerned under Section 173(2) Cr.P.C. 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 Cr.P.C.
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 Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. 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 : 21 : 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 Cr.P.C.
***
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 Cr.P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C., nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on : 22 : the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power 40 under Section 482 Cr.P.C. or under Articles 226/227 of the Constitution."
The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions."
21. He has also relied upon the decision in the case of Essar Teleholdings Limited quoted supra, therein at paragraph Nos.17, 29 and 31 it has been observed as under:
"17. A mere perusal of Section 3 read with Section 4 of the PC Act clearly mandates that apart from an offence punishable under the PC Act, any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified under the PC Act can also be tried by a Special Judge. Sub section (3) of Section 4 specifies that when trying any case, a Special Judge can also try any offence, other than an : 23 : offence specified in Section 3, with which the accused may, under Cr.P.C., be charged at the same trial.
29. Admittedly, 2G Scam case is triable by the Special Judge against the persons accused of offences punishable under the PC Act in view of sub-Section (1) of Section 4. The Special Judge alone can take the cognizance of the offence specified in sub-Section (1) of Section 3 and conspiracy in relation to them. While trying any case, the Special Judge may also try an offence other than the offence specified in sub-Section (1) of Section 3, in view of sub-Section (3) of Section 4. A magistrate cannot take cognizance of offence as specified in Section 3(1) of the PC Act. In this background, as the petitioners have been shown as co-
accused in second supplementary charge-sheet filed in 2G Scam case, it is open to the Special Judge to take cognizance of the offence under Section 120-B and Section 420 IPC.
31. In the present case there is nothing on the record to suggest that the petitioners will not get fair trial and may : 24 : face miscarriage of justice. In absence of any such threat and miscarriage of justice, no interference is called for against the impugned order taking cognizance of the offence against the petitioners."
22. It is the contention of the learned counsel for the respondent that the second F.I.R. would lie in an event when pursuant to the investigation in the first F.I.R., a larger conspiracy is disclosed. In that light, he has also relied upon the decision in the case of Amitbhai Anilchandra Shah, wherein at paragraph No.52 it has been observed as under:
"52. Ram Lal Narang was cited to be an authority carving out an exception to the general rule that there cannot be a second FIR in respect of the same offence. This Court, in the said decision, held that a second FIR would lie in an event when pursuant to the investigation in the first F.I.R., a larger conspiracy is disclosed, which was not part of the first F.I.R. In the case on hand, while entrusting the investigation of the case relating to the killing of Sohrabuddin and Kausarbi to the CBI, this Court, by order dated : 25 : 12.01.2010, expressed a suspicion that Tulsiram Prajapati could have been killed because he was an eye witness to the killings of Sohrabuddin and Kausarbi."
23. On going through the said submissions made by the learned counsels, one fact is very clear that it is the trite of law that the second F.I.R. under Section 154 of Cr.P.C. is not permissible. But however, if there is a larger conspiracy disclosed and which was not part of the first F.I.R., then under such circumstances, the registration of the second F.I.R. is permissible. Whether the second F.I.R. is maintainable or not, the Court has to apply its mind and it must pass through the test of sameness and if it is on the same set of facts and same incident, both the F.I.R. relates to the same incident, in respect of the same occurrence, then under such circumstances, the second F.I.R. is not maintainable. But however, in respect of an incident, which are two or more parts of the same transaction, then under such circumstances, the second F.I.R. is maintainable. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Surender : 26 : Kaushik and others, wherein at paragraph No.22 it has been observed as under:
"22. In Babubhai this Court (in para
21), after surveying the earlier decisions, expressed the view that 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 two different incidents/crimes, the second FIR is permissible. In case the accused in the first FIR comes forward with a different version or counterclaim in respect of the same incident, investigation on both the FIRs has to be conducted."
24. In the said decision, the Hon'ble Apex Court, in the case of Babubhai vs. State of Gujarat reported in (2010) 12 SCC 254, has clearly distinguished the said : 27 : aspects and has given the guidelines, under what circumstances the second F.I.R is maintainable.
25. In the light of the citations which have been quoted by both the learned counsles, on perusal of the records made available, it indicates that a case has been registered in Crime No.73/2019 by the Commercial Street Police Station as R.C. No.14(A)/2019 against the Company of the accused No.1. Though the present petitioner has been shown as an accused, but subsequently by exceeding his power, he has given a clean chit to the accused and he has taken an amount of Rs.164 crores and in that light, the second F.I.R. has been registered under the Prevention of Corruption Act, as held in the decision in the case of Amitbhai Anilchadra Shah quoted supra. In pursuant to the investigation in the first F.I.R., if a lager conspiracy is disclosed which was not part of the first F.I.R., then under such circumstances, the second F.I.R. is maintainable. So in that light, the contention of the learned counsel for the petitioner that the second F.I.R. is not maintainable is not sustainable in law. These cases have been monitored by the Court of Hon'ble Chief Justice under P.I.L. and there : 28 : also, no such contentions have been taken by the accused. At this premature stage, that too when still the investigation is pending, under such circumstances, it is not a fit case to exercise the power under Section 482 of Cr.P.C. Neither there is abuse of process of law nor any illegality.
26. Be that as it may, in order to avoid the inconvenience to face two trials, he is having an option to move the superior Court to have the two cases tried together, if after filing the charge sheet in both the cases and if the accused is advised to do so. When other option to the accused there is no prejudice will be caused to the accused.
In the light of the discussion held above, the petition being devoid of merits, is liable to be dismissed. Accordingly, the petition is hereby dismissed.
Sd/-
JUDGE Rsh