Uttarakhand High Court
Ajit Kumar Chaturvedi & Ors. ..... ... vs The State Of Uttarakhand & Ors on 29 September, 2021
Author: R.C. Khulbe
Bench: R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Appl. (C482) No. 905 of 2020
Ajit Kumar Chaturvedi & ors. ..... Applicants
Versus
The State of Uttarakhand & ors. ...... Respondents
Mr. Vipul Sharma, learned counsel for the applicants.
Mr. Subhash Tygai Bhardwaj, learned Dy. Advocate General for the State.
Mr. Shikhar Kacker and Mr. Akshay Pradhan, learned counsel for the
private respondent.
Hon'ble R.C. Khulbe, J.
By means of present application, filed under Section 482 Cr.P.C., the applicants have sought quashing of the order dated 23.12.2020 passed by the Addl. Chief Judicial Magistrate, Roorkee in Miscellaneous Application No. 108 of 2020, Manpal Sharma vs. Ajit Kumar Chaturvedi and ors.
2. Heard.
3. Facts, in brief, are that an application was moved by respondent no. 4 Manpal Sharma under Section 156(3) Cr.P.C. before the Addl. CJM, Roorkee; on the basis of said application, the concerned Court directed the Inspector, Kotwali Civil Lines to register the FIR and investigate the matter vide order dated 23.12.2020; aggrieved it, the applicants filed the application under Section 482 Cr.P.C.
4. It is argued by the learned counsel for the applicant that one Mr. Prashant Garg has already submitted an information before the concerned Police Station on 11.12.2020 with same facts and allegations, which was registered as FIR No. 0677 of 2020 under Section 409 2 IPC with the same Police Station ; the said FIR was lodged against one Dheeraj Kumar Upadhyayay in which the investigation is pending; respondent Manpal Sharma has no right to file the application under Section 156 (3) Cr.P.C. for lodging the FIR in respect of one and the same incident against the applicants.
5. In support of his submissions, learned counsel for the applicant drew attention of this Court to the judgments of the Hon'ble Apex Court in the case of T.T. Antony vs. State of Kerala, (2001) 6 SCC 181 whereby the Hon'ble Apex Court has held as under:-
" 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 of 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 F.I.R. 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 F.I.R. 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 of the 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 Narangs' case (supra) 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 fling 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 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 3 either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr.P.C. or under Article 226/227 of the Constitution.
6. Further, in the case Amitbhai Anilchandra Shah vs. CBI & anr. (2013) 6 SCC 348 the Hon'ble Apex court has held as under:-
"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.
58.4) Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the station house diary, the officer in charge of the 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 of the Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report(s) to the Magistrate. A case of fresh investigation based on 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 underway or final report Under Section 173(2) has been forwarded to the Magistrate, is liable to be interfered with by the High Court by exercise of power Under Section 482 of the Code or Under Articles 226/227 of the Constitution.
58.5) 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."
7. Per contra, learned counsel for the private respondent submitted that the matter relates to the embezzlement, committed by the officers or officials of the IIT, Roorkee; in the larger public interest, a person 4 has a right to submit an information before the police authorities or before the Magistrate for lodging the FIR and investigate the matter; although, previous FIR was lodged against Dheeraj Kumar Upadhyaya but the other persons are also involved in the matter, accordingly, the concerned Magistrate rightly allowed the application filed under Section 156(3) Cr.P.C. It is further submitted that the applicants have a statutory right to knock the door of the concerned Sessions Judge by filing a revision against the impugned order but they have failed to adopt the statutory powers, accordingly, this Court cannot interfere in the matter.
8. In support of his submissions, learned counsel for the respondent relied upon the judgments of the Hon'ble Apex Court in the case of Surendra Kaushik & ors., vs. State of U.P. & ors., passed in CRLA No. 305 of 2013 decided on 14.02.2013 whereby the Hon'ble Court in para 24 has observed that:-
"24. From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three- Judge Bench in Upkar Singh (supra), the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different 5 shapes and in that event, lodgment of two FIRs is permissible.
9. The learned counsel for the complainant further drew attention of this Court in the case of HDFC Securities Ltd. & ors. Vs. State of Maharashtra & anr, 2017 (1) SCC 640 whereby the Hon'ble Court has held as follows:
24. Per contra, learned counsel for respondent No.2 submitted that the complaint has disclosed the commission of an offence which is cognizable in nature and in the light of Lalitha Kumari's Case, registration of FIR becomes mandatory. We observe that it is clear from the use of the words "may take cognizance" in the context in which they occur, that the same cannot be equated with "must take cognizance". The word "may" gives discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and that the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter, which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.
It is settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, do not disclose the commission of an offence.
27. It appears to us that the appellants approached the High Court even before the stage of issuance of process. In particular, the appellants challenged the order dated 04.01.2011 passed by the learned Magistrate under Section 156(3) of Cr.P.C. The learned counsel appearing on behalf of the appellants after summarizing their arguments in the matter have emphasized also in the context of the fundamental rights of the appellants under the Constitution, that the order impugned has caused grave inequities to 6 the appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appears to us that this order under Section 156(3) of Cr.P.C. requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation. We must keep in our mind that the stage of cognizance would arise only after the investigation report is filed before the Magistrate. Therefore, in our opinion, at this stage the High Court has correctly assessed the facts and the law in this situation and held that filing of the petitions under Article 227 of the Constitution of India or under Section 482 of Cr.P.C., at this stage are nothing but premature. Further, in our opinion, the High Court correctly came to the conclusion that the inherent powers of the Court under Section 482 of Cr.P.C. should be sparingly used.
10. In the case in hand, the Registrar, IIT Roorkee Mr. Prashant Garg has submitted an information on 11.12.2020 at Police Station Roorkee with the allegations that IIT Roorkee had received a sum of Rs. 1,05,35,753/- (Rupees one crore five lakh thirty five thousand seven hundred and fifty three) from different sources and transferred it in the account of Dheeraj Kumar Upadhyaya; the said amount has been embezzled by the officers or officials of the IIT, Roorkee.
11. The respondent has also filed an application under Section 156(3) Cr.P.C., on 07.12.2020 with same set of facts; the concerned Court allowed the said application on 23.12.2020 and a direction was issued to the concerned police station to lodge the FIR and investigate the matter; aggrieved by it, present application under Section 482 Cr.P.C. for quashing the impugned order has been preferred.
712. It is submitted by the learned counsel for the petitioner that since FIR No. 0677 of 2020 has already been registered on 11.12.2020, accordingly, there was no occasion to pass the impugned order dated 23.12.2020.
13. Perusal of the application filed under Section 156 (3) Cr.P.C. would reveal that the respondent has made all the allegations regarding misappropriation of funds received by the IIT Roorkee; he made allegations not only against Dheeraj Kumar Upadhyaya but also against the Director, Dean, Registrar and clerks of the Institution ; from the perusal of the FIR dated 11.12.2020 and the application submitted under section 156(3) Cr.P.C., it is, prima face, clear that, in both, the allegations are same qua embezzlement of funds received by the IIT, Roorkee.
14. The Hon'ble Apex Court in a catena of judgments has held that the second FIR is permissible if there is a cross case. The Hon'ble Apex Court in the case of Arnab Ranjan Goswami vs. Union of India reported in 2020 (14) SCC 12 held that no subsequent FIR in respect of the same or connected cognizable offence, occurrence or incident is permissible unless it is in the form of counter claim and also held that such FIR would constitute an abuse of the statutory power of investigation and would liable to be quashed.
15. No doubt, in the FIR as well in the application filed under Section 156(3) Cr.P.C., there are serious allegations qua misappropriation of funds received by the IIT, Roorkee; IIT Roorkee is one of the prestigious Institutions situated in the Devbhoomi; it is a matter of embezzlement of more than crores of rupees as alleged in the FIR as well as in the application, but from the 8 record it is clear that on 11.12.2020 FIR has already been lodged regarding embezzlement before Police Station Roorkee under Section 409 IPC; the matter is still under investigation; there was no occasion to file an application under Section 156(3) Cr.P.C. regarding the same set of allegations for lodging the second FIR with same police station; the concerned Court did not notice this fact and simply allowed the application and passed the order for lodging the FIR; although the FIR No. 0677 of 2020 was lodged against Dheeraj Kumar Upadhyayay only but the matter is under investigation; the investigating agency has a power to submit a report under Section 173 Cr.P.C. against the real culprits although who are not named in the FIR, but the Magistrate has no power to direct the police to lodge the second FIR against the same set of allegations which is an abuse of process of law as per the dictum of Hon'ble Apex Court in the case of Arnab Ranjan Goswami (supra).
16. In view of the aforesaid, the C482 petition is liable to be allowed. The same is thus allowed. As a consequence, order dated 23.12.2020 passed by the Addl. CJM, Roorke Haridwar in Miscellaneous Application No. 108 of 2020, Manpal Sharma vs. Ajit Kumar Chaturvedi and ors., is hereby set aside qua the applicants.
17. Pending application, if any, also stands disposed of.
(R.C. Khulbe, J.) 29.09.2021 Parul