Madhya Pradesh High Court
Brijendra Kumar Kashyap vs The State Of Madhya Pradesh on 24 October, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC
2024:MPHC-JBP:54015
1 W.P.No.
.P.No.2714/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 24th OF OCTOBER, 2024
WRIT PETITION No. 2714 of 2024
BRIJENDRA KUMAR KASHYAP
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vidya Shankar Mishra - Advocate for petitioner.
Shri Abhishek Singh - Government Advocate for respondent
respondents
/State.
ORDER
This petition under Article 226 of Constitution of India has been filed seeking following relief(s):
relief(s):-
"a.
a. That, the Hon'ble court may kindly be please to issue a Writ in nature of Mandamus thereby directing the respondents to consolidate/ club the FIRs registered istered against the petitioner herein in different police stations in different districts through the state of Madhya Pradesh under section 420, 409/34 of IPC to Bhopal;
b. Any other relief/order, which this Hon'ble court deemed fit looking to the facts aand nd circumstances of the case in the end of justice."
justice.
2. It is submitted by counsel for petitioner that multiple FIRs have been lodged by different complain complainants ants pointing out similar nature of NEUTRAL CITATION NO. 2024:MPHC 2024:MPHC-JBP:54015 2 W.P.No. .P.No.2714/2024 transactions/fraud /fraud allegedly played by the petitioner and, therefore in the light of judgment passed by the Supreme Court in the case of Satinder Singh Bhasin vs. State of Uttar Pradesh decided on 12.05.2022 in W.P.(Cr.) No.197/2021 No.197/2021, Amish Devgan vs. Union of India decided on 07.12.2020 in W.P.(Cr.) No.160/2020 and in the case of Abhishek Singh Chouhan vs. Union of India decided on 19.10.2023 in W.P.(Cr.) No. 40/2022 all the FIRs may be clubbed together, which are pending at different police stations in different dis districts tricts of Madhya Pradesh.
3. Counsel for petitioner was repeatedly asked asked as to whether all the FIRs have been lodged in respect of the same offence but it was submitted by counsel for petitioner that all the FIRs were lodged by different complainants pointing pointing out different transactions but submitted that all the transactions are of similar in nature.
4. It is submitted by counsel for petitioner that basic allegations allegation against petitioner are that in the name of contract farming, farming, huge amount was taken from different complainants at different point of time and at different places and, thereafter the contract farming was not done and the amount so collected by the petitioner and other co co-accused accused persons was embezzled and even the office was closed. The cheques, cheque which were given by the company at the time of agreement stood bounced.
5. Now the question for consideration is that whether the different FIRs pointing out similar nature of fraud played with different persons at different places can be clubbed together tog or not ?
6. Section 219 of Cr.P.C. reads as under:-
under:
NEUTRAL CITATION NO. 2024:MPHC 2024:MPHC-JBP:54015 3 W.P.No. .P.No.2714/2024 "219. Three offences of same kind within year may be charged together together.- (1) When a person is accused of more offences than one of the same kind commited within the space of twelve months from the first to the last of such offences whether in respect of the same person or not, he may be charged with, and tried at one trial for, anyy number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local law:
Provided that, for the purposes purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be am offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section section of the said Code, ort any special or local law, shall be deemed to be an offence of the same kind aa"
7. Therefore, only three offence offences of similar in nature committed within twelve months can be tried together.
8. This Court in the case of Manoj Kumar Goyal v. State of Madhya Pradesh and Ors reported in AIROnline 2019 MP 1198 has held as under:-
"15.
15. The following questions arise for determination :
15.1 In a case of cheating, whether each and every act of cheating would amount to separate offence warr warranting anting registration of separate F.I.R, or whether the Police by filing a consolidated charge-sheet sheet can make the other victims as a witnesses, and if every act of cheating is a separate offence, then whether more than 3 NEUTRAL CITATION NO. 2024:MPHC 2024:MPHC-JBP:54015 4 W.P.No. .P.No.2714/2024 offences committed in a calendar year can be tried together or not?
15.2 Whether the application for quashment of proceedings can be entertained, when the police has filed the charge sheet against co-accused co accused persons, but kept the investigation pending against the petitioner, on the ground that he is yet to be arrested and seizures are yet to be made? 15.3 What is the effect of non furnishing of the bail after complying with the conditions imposed by the Court, while granting anticipatory bail.
bail.\ Whether each and every act of cheating constconstitutes itutes a separate offence or a consolidated F.I.R. can be filed by showing one victim as complainant and other victims as witnesses?
16. The 3 Judges Bench of Supreme Court in the case of Narinderjit Singh Sahni Vs. Union of India reported in (2002) 2 SCC 210 has held as under :
60. As regards the issue of a single offence, we are afraid that the fact situation of the matters under consideration would not permit to lend any credence to such a submission. Each individual deposit agreement shall have to be ttreated reated as a separate and individual transaction brought about by the allurement of the financial companies, since the parties are different, the amount of deposit is different as also the period for which the deposit was effected. It has all the characteri characteristics of independent transactions and we do not see any compelling reason to hold it otherwise. The plea as raised also cannot have our concurrence.
17. Another 3 Judges Bench of Supreme Court in the case of State of Punjab Vs. Rajesh Syal reported in (2002)
02) 8 SCC 158 has held as under:
6. On a query being raised by this Court, the NEUTRAL CITATION NO. 2024:MPHC 2024:MPHC-JBP:54015 5 W.P.No. .P.No.2714/2024 learned counsel for the respondent sought to rely on Sections 218 and 220 CrPC in an effort to justify his plea for the consolidation of the cases.
Mr Bali submitted that because because of the proviso to Section 218, even where there are distinct offences being tried the Magistrate can direct that the same be tried together. In our opinion, proviso to Section 218 would apply only in such a case where the distinct offences for which the accused is charged are being tried before the same Magistrate. In the instant case, offences were being tried before different Magistrates and proviso to Section 218 cannot give any single Magistrate the power to order transfer of cases to him from differ different ent Magistrates or courts. Even Section 220 does not help the respondent as that applies where any one series of acts are so connected together as to form the same transaction and where more than one offence is committed, there can be a joint trial.
7. In the present case, different people have alleged to have been defrauded by the respondent and the Company and therefore each offence is a distinct one and cannot be regarded as constituting a single series of facts/transaction.
18. Recently, the High Cour Courtt of Delhi, in the case of State Vs. Khimji Bhai Jadeja by order dated 8-7-2019 2019 in the case of Cr. Reference No. 1/2014, while deciding the criminal reference made by an Additional Sessions Judge under Section 395(2) of Cr.P.C. has held as under :
The questions of law framed by the Ld. ASJ for determination of this Court, read as follows:
a. Whether in a case of inducement, allurement and cheating of large number of investors/ depositors in pursuance to a criminal conspiracy, each deposit by an investo investorr constitutes a separate and individual transaction or all such transactions NEUTRAL CITATION NO. 2024:MPHC 2024:MPHC-JBP:54015 6 W.P.No. .P.No.2714/2024 can be amalgamated and clubbed into a single FIR by showing one investor as complainant and others as witnesses?
b. If in case the Hon'ble Court concludes that each deposit has tto o be treated as separate transaction, then how many such transactions can be amalgamated into one charge charge- sheet? (Note: - As per the provisions of section 219 Cr.PC. and as observed by the Hon'ble Apex Court in the case of Narinderjit Singh Sahni and Anr. Vs. Union of India and Ors. Only three transactions in a particular year can be clubbed in a single charge-- sheet).
c. Whether under the given circumstances the concept of maximum punishment of seven years for a single offence can be pressed into service by the accused by clubbing and amalgamating all the transactions into one FIR with maximum punishment of seven years?
(Note: - If this is done, this would be in violation of concept of Proportionality of Punishment as provided in the Code of Criminal Procedure.
Procedure. In the case of Narinderjit Singh Sahni vs. Union of India and Ors. it has been observed by the Hon'ble Supreme Court that this cannot be done but in case if we go by the ratio laid down by the Delhi High Court in the case of State vs. Ramesh Chand Kapoor apoor this is possible. Hence this aspect requires an authoritative pronouncement by a larger Bench)?.
The High Court while answering the reference has held as under :
62. Thus, our answer to Question (a) is that in a case of inducement, allurement and cheating cheating of large number of investors/ depositors in NEUTRAL CITATION NO. 2024:MPHC 2024:MPHC-JBP:54015 7 W.P.No. .P.No.2714/2024 pursuance to a criminal conspiracy, each deposit by an investor constitutes a separate and individual transaction. All such transactions cannot be amalgamated and clubbed into a single FIR by showing one investor as the complainant, and others as witnesses. In respect of each such transaction, it is imperative for the State to register a separate FIR if the complainant discloses commission of a cognizable offence.
****
80. Thus, our answer to question ((b)b) is that in respect of each FIR, a separate final report (and wherever necessary supplementary/ further charge sheet(s)) have to be filed, and there is no question of amalgamation of the final reports that may be filed in respect of different FIRs. The amalgamation, malgamation, strictly in terms of Section 219 Cr.P.C., would be considered by the Court/ Magistrate at the stage of framing of charge, since Section 219(1) mandates that where the requirements set out in the said Section are met, the accused "may be charge chargedd with, and tried at one trial for, any number of them not exceeding three"
81. We may now proceed to answer question (c), which read as follows:
-c.
c. Whether under the given circumstances the concept of maximum punishment of seven years for a single offence offence can be pressed into service by the accused by clubbing and amalgamating all the transactions into one FIR with maximum punishment of seven years?
82. In our view, the aforesaid question does not survive in view of the answer to question (a) and
(b). Itt would be for the Trial Court to consider the sentence to which the convict may be subjected as per law, keeping in view the well NEUTRAL CITATION NO. 2024:MPHC 2024:MPHC-JBP:54015 8 W.P.No. .P.No.2714/2024 settled principles of sentencing. In this regard, we may only refer to Section 31 of the Cr.P.C.
which, inter alia, provides that when a person is convicted at one trial of two or more offences, the Court, may subject to the provisions of Section 71 IPC, sentence him for such offences to the several punishments prescribed therefor which such Court is competent to inflict. It further ther provides that such punishments, which consist of imprisonment, would commence one after the expiration of the other, unless the Court directs that such punishments shall run concurrently. The limitation on the quantum of sentence is prescribed by sub Section 2 of Section 31 of the Cr.P.C., but the same would apply in respect of convictions at one trial of two or more offences. However, where the trials are multiple, which result into multiple convictions, the proviso to Section 31(2) would have no application.
ication.
83. Accordingly, the Criminal reference is answered in the above terms.
19. Thus, each and every act of cheating is a separate offence in itself, requiring registration of separate F.I.R. In the present case, the police has registered only one consolidated onsolidated F.I.R. and as per the allegations, several persons to the tune of Rs. 4 Crores were cheated by the accused persons. Thus, under these circumstances, although the police might have registered only one F.I.R., but one victim cannot be treated as a complainant and the remaining victims cannot be treated as witnesses only. In the present case, the petitioner has impleaded the complainant only and has filed his own affidavit and the affidavit of the complainant in support of the application filed under er Section 320 of Cr.P.C. Since, each victim is a complainant, therefore, affidavits of each and every victim were necessary in support of the application, but in view of the photocopies of affidavits (filed as NEUTRAL CITATION NO. 2024:MPHC 2024:MPHC-JBP:54015 9 W.P.No. .P.No.2714/2024 Annexure P/4) of victims, the petitioner can be directed to implead all the victims as respondents. However, the next question would be that whether any direction to file the affidavits of all the victims would serve any purpose or not? This shall be considered in the following paragraphs.
20. Thus,, it is held that the police should have registered separate F.I.R.s for every act of cheating and should not have lodged a consolidated F.I.R. However, as the charge sheet has already been filed against the co- co accused persons, therefore, this Court, doesndoesnot ot find it appropriate to issue any direction to the police in this regard. Non-arrest arrest and non-cooperation non cooperation of the petitioner in the investigation.
9. The Supreme Court in the case of Amandeep Singh Saran vs. the State of Delhi and others decided on 06.11.2023 passed in W.P.(Criminal) No.341/2022 has held as under:-
"The The submission that if for the same offence multiple FIRs are filed before different Police Stations across the country, in that case, relief could be granted to the accused is concerned, is a matter which could be considered by this Court. On the other hand, in the instant case, the offences are registered against the petitioner herein not only under the provisions of Indian Penal Code (IPC) but also invoking the respective State Stat enactments which are made for protection of investors and under each of the State enactments, special courts have been designated to take cognizance and try offences against the accused therein. Therefore, any clubbing of the FIRs would mean that the jurjurisdiction isdiction of the special courts constituted in each of the States would be taken away and a special jurisdiction would be conferred on one of the Courts where the FIRs are to be clubbed to try the offences which arise under the different State enactments. It was urged that this is impermissible in law.
NEUTRAL CITATION NO. 2024:MPHC 2024:MPHC-JBP:54015 10 W.P.No. .P.No.2714/2024 Reliance placed by the learned counsel for the petitioner Sri Sharma on a three judge judge-bench bench judgment of this Court in Mohammed Zubair vs State of NCT of Delhi and Ors. (W.P. (Crl) No.279 of 2022} (Mohd. Zubair) ir) is of no assistance inasmuch as the offence alleged against the petitioner therein was only one and common in respect of which, there were several FIRs lodged across the country. It was in those circumstances, that relief was granted to the petitioner therein. However, as we have already stated in the instant case, the FIRs have been filed against the petitioner in the respective States not only invoking the provisions of the Indian Penal Code (IPC) but also the provisions of the respective State enactments, enactments, under which special Courts have been constituted to try the offences under those enactments. The judgment of this Court in Mohammed Zubair cannot be applied having regard to the facts of this case. For the very same reason the order of this Court passed sed in W.P. (Crl) No.74/2023 Pawan Khera vs. State of Assam and Ors. is not applicable having regard to the facts of the present case. We, therefore, accept the contention of the learned senior counsel and learned counsel for the respondents. In the circum circumstances, stances, we decline to exercise the jurisdiction under Article 142 of the Constitution of India in the instant case. However, as far as prayer 3 sought for by the petitioner is concerned, liberty is reserved to the petitioner to approach each of the jurisdictional ictional High Courts to seek clubbing of the FIRs pending against the petitioner within that particular State and also seek any other interim or final remedies as are available in law to the petitioner."
petitioner.
10. Thus, it is clear that each and every act of cheating heating with different complainant is a separate rate and distinct offence.
11. Section 177 of Cr.P.C. reads as under:
under:-
"177.
177. Ordinary place of inquiry and trial. NEUTRAL CITATION NO. 2024:MPHC 2024:MPHC-JBP:54015 11 W.P.No. .P.No.2714/2024
- Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction jurisdiction it was committed."
12. Thus, it is clear that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. The petitioner has not filed the copies of all the FIRs. However, the contention of the petitioner is that in all the cases, the allegations are that in the name of contract farming, the petitioner had induced the innocent persons to deposit their money and thereafter he fled away away.
13. So far as the judgment passed by Supreme Court in n the case of Satinder Singh Bhasin (supra) is concerned, it is clear from the said order that State of Delhi had also expressed its no objection in case, all the FIRs are clubbed with the principal FIR.
14. Under these circumstances, when each and ever everyy act of cheating is distinct and separate offence and in the light of Section 220 of Cr.P.C., only three offence offences of similar transaction committed in a calendar year can be clubbed and tried together, this his Court is of considered opinion that no case is ma made de out warranting clubbing of all the FIRs.
15. The petition fails and is hereby dismissed.
(G.S. G.S. AHLUWALIA) AHLUWALIA JUDGE VB* VINAY KUMAR BURMAN 2024.10.26 16:59:39 +05'30'