Calcutta High Court (Appellete Side)
Pradip Sengupta vs The State Of West Bengal & Anr on 26 June, 2014
Author: R. K. Bag
Bench: R. K. Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice R. K. Bag, J.
CRR No. 1005 of 2014 Pradip Sengupta Vs. The State of West Bengal & Anr.
For the Petitioners : Mr. Sekhar Kumar Basu,
Mr. D. Basu,
For the Opposite Party : Mr. Dipak Kumar Sengupta, For the State : Mr. Manjit Singh, Mr. Amarta Ghose, Heard on : 25.03.2014, 22.04.2014, 02.05.2014, 06.05.2014, 13.05.2014.
Judgment on : 26.06.2014
R. K. Bag, J.
This criminal revision is preferred by the petitioner for quashing the criminal proceeding being G. R. Case No.1111 of 2013 arising out of Bidhannagar (South) Police Station Case No.225 of 2013 dated 19.12.2013 under Sections 420/406/120B/34 of the Indian Penal Code and under added Section 384 of the Indian Penal Code pending before the Court of Learned Additional Chief Judicial Magistrate, Bidhannagar, North 24- Parganas.
2. The Opposite Party No.2 - Sushil Kumar Agarwala is a Director of M. L. A. Developers and Constructions Pvt. Ltd., a company within the meaning of the Companies Act, 1956 and having its registered office at City Mall, Sevok Road, Siliguri-734001. The Opposite Party No.2 filed one petition of complaint before the Court of Learned Chief Judicial Magistrate, Barasat under Section 156(3) of the Code of Criminal Procedure for forwarding the said petition of complaint to the Inspector-in-charge of Bidhannagar (South) Police Station to treat the same as F.I.R. and to take up the investigation. Accordingly, Bidhannagar (South) Police Station Case No.225 of 2013 dated 19.12.2013 was started. The contents of the petition of complaint treated as F.I.R. disclose that the company of the Opposite Party No.2 was looking for a land in and around Siliguri for constructing a Five Star Hotel and in that connection sometimes in the month of January, 2011 the petitioner and one Madhav Das Fomra had come in contact with the Opposite Party No.2 through brokers. The petitioner and Mr. Fomra represented that the Siliguri Jalpaiguri Development Authority granted lease of land measuring 5 acres appertaining to C. S. Plot No.296(P), 297(P), 301(P), J. L. No.81 of Mouza-Gourcharan, situated at Hotel Block, Sector Commercial of Himachal Vihar Complex, Matigara, Siliguri in favour of M/s. Lipika Enterprises under registered deed of lease dated 9th October, 2007 for a period of 99 years. The petitioner and Mr. Fomra further represented that by and under a memorandum of understanding dated 12th October, 2007 the said M/s. Lipika Enterprises represented by its Director - M. P. Agarwala had appointed the petitioner and Mr. Fomra to develop the said land and thereby to enjoy the usufruct and benefit arising out of the said property. The petitioner and Mr. Fomra also represented that by virtue of the said memorandum of understanding between M/s. Lipika Enterprises and others, the petitioner and Mr. Fomra acquired 62.5 % right over the said plot of land including the area on which construction is made and the benefit arising therefrom at a total consideration of Rs.8 crore.
3. It was decided in a meeting between the petitioner, Mr. Fomra, Mr. M. P. Agarwala and the Opposite Party No.2 at the residence of the petitioner that the petitioner and Mr. Fomra would transfer their right accrued by virtue of memorandum of understanding dated 12th October, 2007 in favour of the company of the Opposite Party No.2 and therefore two separate memorandum of understanding were executed - one between the company of the Opposite Party No.2 and Mr. Fomra and another between the company of the Opposite Party No.2 and the present petitioner in presence of M. P. Agarwala of M/s. Lipika Enterprises on 17.02.2011. The Opposite Party No.2 made payment of Rs.10,00,000/- in favour of the present petitioner and Rs.10,00,000/- in favour of Mr. Fomra by issuing two pay orders at the time of execution of the said memorandum of understanding dated 17.02.2011. The Opposite Party No.2 also handed over several account payee cheques in favour of Mr. Fomra, M.P. Agarwala and the petitioner, but those account payee cheques were taken back and Rs.90,00,000/- was paid in cash to all of them in the residence of the petitioner. Thus, the Opposite Party No.2 made total payment of Rs.1,10,00,000/- in favour of Mr. Fomra, M.P. Agarwala and the present petitioner in the residence of the petitioner.
4. It was recorded in the memorandum of understanding dated 17.02.2011 that the possession of the land is delivered in favour of the company of the Opposite Party No.2, but actually the possession was not delivered at the time of execution of the memorandum of understanding. When the Opposite Party No.2 raised objection with regard to incorporation of the fact of making delivery of possession of land in the memorandum of understanding, the Opposite Party No.2 was made to believe that possession of the land would be delivered after obtaining necessary approval from Siliguri Jalpaiguri Development Authority. Mr. Fomra, M. P. Agarwala and the petitioner did not make delivery of possession of the land on various pretexts for more than one year. Ultimately, the Opposite Party No.2 received copy of letter addressed to the Siliguri Jalpaiguri Development Authority by Mr. Fomra on 24.11.2012, wherefrom it is clear to the Opposite Party No.2 that Mr. Fomra is wrongfully attempting to frustrate the entire transaction as Mr. Fomra did not mention about the fact of receiving Rs.90,00,000/- in cash from the Opposite Party No.2. The Opposite Party No.2 also got a copy of letter dated 08.01.2013 from Siliguri Jalpaiguri Development Authority calling upon Mr. Fomra, Mr. Agarwala and the petitioner to explain the nature of the entire transaction and the reply of the said letter was given in due course. Thereafter, the Opposite Party No.2 tried to contact Mr. Fomra, M. P. Agarwala and the present petitioner, but they denied the entire transaction. The Opposite Party No.2 reported the entire incident to the Inspector-in-charge of Bidhannagar (South) Police Station on 28.11.2013 and the gist of the incident was recorded in the said police station vide G. D. Entry No.2748. Mr. Fomra, M. P. Agarwala and the petitioner hatched a conspiracy between themselves with intention to deceive the Opposite Party No.2 by making dishonest and fraudulent representation for making wrongful gain of Rs.1,10,00,000/- from the Opposite Party No.2. Accordingly, the criminal case was started against Mr. Fomra, M.P. Agarwala and the present petitioner on the allegation of committing offence under Sections 420/406/120B/34 of the Indian Penal Code on 19.12.2013 at Bidhannagar (South) Police Station.
5. Mr. Sekhar Kumar Basu, Learned Senior Counsel appearing on behalf of the petitioner contends that the Opposite Party No.2 started Matigara Police Station Case No.173 of 2013 on 08.04.2013 against Mr. Fomra, M.P. Agarwala and the present petitioner in respect of the same offence for which the Opposite Party No.2 again filed a petition of complaint before the Court of Learned Chief Judicial Magistrate, Barasat under Section 156(3) of the Code of Criminal Procedure with prayer to forward the same to the Inspector-in-charge of the Bidhannagar (South) Police Station for registration of F.I.R. and causing investigation. Mr. Basu submits that the Opposite Party No.2 has suppressed the fact of starting Matigara Police Station Case No.173 of 2013 against the present petitioner and others on 08.04.2013 at the time of filing the petition of complaint before the Court of Learned Chief Judicial Magistrate, Barasat under Section 156(3) of the Code of Criminal Procedure, 1973 and thereby the Opposite Party No.2 has practised fraud on Learned Chief Judicial Magistrate, Barasat for the purpose of initiating criminal proceeding against the present petitioner and other co- accused persons. According to Mr. Basu, had the fact of pending investigation at Matigara Police Station in respect of the same offence been disclosed to Learned Chief Judicial Magistrate, Barasat, Learned Magistrate would not have referred the petition of complaint to the Inspector-in-charge of Bidhannagar (South) Police Station under Section 156(3) of the Code of Criminal Procedure for registration of F.I.R. and causing investigation. Mr. Basu has vehemently urged before this court that the fraud practised by the Opposite Party No.2 has the effect of making the entire investigation nullity in the eye of law. Mr. Basu has relied on the decision of "Union of India V. Ramesh Gandhi" reported in (2012) 1 SCC 476 in support of his above contention.
6. The next submission made by Mr. Basu is that the petitioner had to take bail in respect of both the F.I.Rs, though the offences disclosed in F.I.R. No.173 of 2013 of Matigara Police Station and F.I.R. No.225 of 2013 of Bidhannagar (South) Police Station are the same. Mr. Basu further submits that Section 384 of the Indian Penal Code was added against the petitioner and other co-accused persons in course of investigation of FIR no.225 of 2013 of Bidhannagar (South) Police Station, though the said offence punishable under Section 384 of Indian Penal Code is part of the same transaction. According to Mr. Basu, nobody will be allowed to exploit our judicial system by subjecting anyone to the rigours of investigation in two different criminal cases arising out of two different F.I.Rs lodged in connection with the same offence or offences arising out of the same transaction. If there are two F.I.Rs in respect of the same incident (without giving a different version of the same incident being a counter-case) or in respect of the offences arising out of the same transaction, the second F.I.R. must be quashed to prevent abuse of the process of the court and for ends of justice. Mr. Basu has relied upon "Babubhai V. State of Gujarat" reported in (2011) 1 SCC (Cri.) 336 and "Amitbhai Anilchandra Shah V. Central Bureau of Investigation" reported in (2014) 1 SCC (Cri.) 309 in support of his above contention.
7. Mr. Dipak Kumar Sengupta, learned senior counsel appearing on behalf of the Opposite Party No.2 submits that the investigation in connection with F.I.R. No.173 of 2013 of Matigara Police Station and F.I.R. No.225 of 2013 of Bidhannagar (South) Police Station is still continuing and the investigation of crime is the exclusive domain of the executive and the court should not interfere in course of investigation. Mr. Sengupta contends that the question of registration of two F.I.Rs on the same incident at Matigara Police Station and Bidhannagar (South) Police Station and obtaining order by the Opposite Party No.2 from the Court of Learned Chief Judicial Magistrate, Barasat for the purpose of causing investigation by the Inspector in-charge of Bidhannagar (South) Police Station under Section 156(3) of the Code of Criminal Procedure by suppressing the fact of lodging an earlier F.I.R. in respect of the same incident before Matigara Police Station is essentially question of fact which cannot be scrutinized by the High Court sitting in the revisional jurisdiction or even by exercise of inherent power under Section 482 of the Code of Criminal Procedure, 1973. Mr. Sengupta also submits that the ratio of the decision of "Babubhai V. State of Gujarat" reported in (2011) 1 SCC (Cri.) 336 will not be applicable in the facts of the present case for two reasons: first, the investigation in connection with Matigara Police Station Case No.173 of 2013 relates to offences under Section 406/420/120B of the Indian Penal Code, whereas the investigation in connection with Bidhannagar (South) Police Station Case No.225 of 2013 relates to offences not only under Section 420/406/120B/34 of the Indian Penal Code, but also under Section 384 of the Indian Penal Code and secondly, the investigation in connection with both the F.I.Rs is still continuing, whereas the investigation in connection with two F.I.Rs in Babubhai's case was completed and charge sheet was submitted. The gist of submission made by Mr. Sengupta is that there is no bar under the law to investigate in connection with two F.I.Rs, but there should be one single trial of both the cases as laid down under Section 220 of the Code of Criminal Procedure, 1973. In support of the above contention, Mr. Sengupta has relied on the following five decisions: i) "Union of India V. Prakash P. Hinduja" reported in AIR 2003 SC 2612, ii) Anju Chaudhary V. State of UP" reported in 2013 Cri. L. J. 776, iii) "Lalita Kumari V. Government of UP"
reported in (2014) 2 SCC 1, iv) "D. Venkata subramanian V. M. K. Mohan Krishnamachari" reported in (2009) 10 SCC 488 and
v) "State of Orissa V. Saroj Kumar Sahoo" reported in (2005) 13 SCC 540.
8. Mr. Manjit Singh, Learned Public Prosecutor appearing on behalf of the opposite party/State contends that F.I.R. No.173 of 2013 of Matigara Police Station and F.I.R. No.225 of 2013 of Bidhannagar (South) Police Station do not relate to the same offences inasmuch as the materials collected during investigation of Matigara Police Station case disclose the offences punishable under Section 406/420/120B of the Indian Penal Code, whereas the materials collected by the Investigating Agency in connection with Bidhannagar (South) Police Station case disclose the offences punishable under Section 420/406/120B/34 and 384 of the Indian Penal Code. Moreover, Mr. Singh submits that the Investigating Officer of Matigara Police Station Case No.173 of 2013 has filed an application before the Court of Learned Additional Chief Judicial Magistrate, Siliguri for transfer of the investigation of Matigara Police Station case to the Inspector-in-charge of Bidhannagar (South) Police Station on the ground that the offences in question took place within the territorial jurisdiction of Bidhannagar (South) Police Station, but no order has yet been passed by the court and the said application is still pending for hearing. Thus, Mr. Singh submits that the materials collected by the Investigating Agency in connection with Matigara Police Station Case No.173 of 2013 may be merged with the materials collected by the Investigating Agency in connection with Bidhannagar (South) Police Station Case No.225 of 2013 and the petitioner should not be allowed to wriggle out of his criminal liability by quashing the F.I.R. of Bidhannagar (South) Police Station as contended on behalf of the petitioner.
9. It appears from the materials on record that on 08.04.2013 the Opposite Party No.2 gave information in writing to the Officer- in-charge of Matigara Police Station for which Matigara Police Station Case No.173 of 2013 was started on 08.04.2013. The Opposite Party No.2 also filed petition of complaint before the Court of Learned Chief Judicial Magistrate, Barasat under Section 156(3) of the Code of Criminal Procedure, 1973 for forwarding the said petition of complaint to the Inspector-in- charge of Bidhannagar (South) Police Station for registration of F.I.R. and thereby Bidhannagar (South) Police Station Case No.225 of 2013 was started on 19.12.2013. On consideration of F.I.R. No.173 of 2013 dated 08.04.2013 of Matigara Police Station and F.I.R. No.225 of 2013 dated 19.12.2013 of Bidhannagar (South) Police Station, I find that the contents of both the F.I.Rs disclose the same offences. The materials collected by the Investigating Agency in connection with Matigara Police Station Case No.173 of 2013 disclose the offences under Section 406/420/120B of the Indian Penal Code and the materials collected by the Investigating Agency in connection with Bidhannagar (South) Police Station Case No.225 of 2013 disclose the offences under Section 420/406/120B/34 of the Indian Penal Code. In both the cases under investigation the accused persons are the same namely Madhav Das Fomra, Pradip Sengupta (the present petitioner) and M. P. Agarwala of M/s. Lipika Enterprises. The offences under investigation in both the cases took place within territorial jurisdiction of Learned Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas. It is true that the Investigating Officer of Bidhannagar (South) Police Station Case No.225 of 2013 has collected materials disclosing offence against the present petitioner and other co-accused persons under Section 384 of the Indian Penal Code, but the said offence under Section 384 of the Indian Penal Code is part of the same transaction. The admitted position is that the investigation in connection with both the F.I.Rs is still continuing and police report in final form has not yet been submitted by the investigating officer before the Court of Learned Magistrate under Section 173 of the Code of Criminal Procedure, 1973. With the above factual matrix, I would like to deal with the contentions made by Learned Counsels of both parties on the issue of quashing the second F.I.R. i.e. Bidhannagar (South) Police Station Case No.225 of 2013.
10. It is contended on behalf of the petitioner that the Opposite Party No.2 suppressed the fact of pending investigation at Matigara Police Station in respect of the same offence at the time of filing the petition of complaint before the Court of Learned Chief Judicial Magistrate, Barasat under Section 156(3) of the Code of Criminal Procedure for registration of F.I.R. and causing investigation and thereby the Opposite Party No.2 has practised fraud on Learned Chief Judicial Magistrate, Barasat and as such the entire investigation in connection with Bidhannagar (South) Police Station Case No.225 of 2013 has become nullity in the eye of law. The counter-argument on behalf of the Opposite Party No.2 is that the suppression of fact of lodging of an earlier F.I.R. in respect of the same incident before Matigara Police Station by the Opposite Party No.2 before the Court of Learned Chief Judicial Magistrate, Barasat is essentially a question of fact which cannot be scrutinized by the High Court sitting in the revisional jurisdiction or even by exercise of inherent power under Section 482 of the Code of Criminal Procedure, 1973. I am unable to accept the contention made on behalf of the Opposite Party No.2, because the issue of practising fraud by the Opposite Party No.2 raised on behalf of the petitioner must be decided by this court to prevent miscarriage of justice and also to prevent abuse of the process of the court. The decision of "Union of India V. Ramesh Gandhi" reported in (2012) 1 SCC 476 is cited by Mr. Basu in support of the contention that fraud practised by the Opposite Party No.2 has the effect of making the entire investigation nullity in the eye of law. In "Union of India V. Ramesh Gandhi"
one F.I.R. was lodged against one private company, its members, Coal Controller, some officers of Central Coalfields Limited on the allegation that all the accused had entered into criminal conspiracy to confer an illegal and unjust benefit on the private company and thereby various acts and omissions committed by the accused persons caused huge wrongful loss of about Rs.90,00,000/- to Central Coalfields Limited and corresponding wrongful gain to private company. The private company failed to comply with the twin obligations arising under two contracts i.e. i) lifting of the coal contracted to be purchased by it in accordance with the schedule agreed upon and ii) making the payment of money towards sale price of the coal in terms of the schedule of the payment agreed upon. The accused persons intentionally and dishonestly suppressed the said relevant and crucial facts in various cases filed before the Calcutta High Court and also the Supreme Court of India, which resulted in orders being passed by both by the High Court as well as the Supreme Court favourable to the private company. The suppression of crucial fact that the private company committed breach of its contractual obligations was deliberate and intentional on the part of the accused. Such suppression is a consequence of a criminal conspiracy between all the accused persons to enable the private company to secure an illegal monetary gain by manipulating the judicial process. In this case the High Court quashed the F.I.R. on the ground that the supply of coal had been in terms of a decision given by the High Court and approved by the Supreme Court and for the said reason no magistrate can decide whether any unjust pecuniary advantage was made available to the private company. The order of quashing the F.I.R. by the High Court was set aside by the Supreme Court. Accordingly, in "Union of India V. Ramesh Gandhi" the order of quashing the F.I.R. was set aside on the ground that investigation may continue to unearth the criminal conspiracy between the private company and the officers of Central Coalfields Limited and Coal India Limited who deliberately suppressed the fact that private company had committed breach of its contractual obligations before the High Court and the Supreme Court in order to enable the private company to obtain favourable order and thereby make wrongful gain.
11. In the instant case, the Opposite Party No.2 has not made any wrongful gain by suppressing the fact of lodging of previous F.I.R. No.173 of 2013 before Matigara Police Station in respect of the same offence. It is pertinent to point out that the offences in connection with F.I.R. No.173 of 2013 dated 08.04.2013 of Matigara Police Station and F.I.R. No.225 of 2013 dated 19.12.2013 of Bidhannagar (South) Police Station are same and the offences took place within the territorial jurisdiction of Learned Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas and not within the territorial jurisdiction of Additional Chief Judicial Magistrate, Siliguri, Darjeeling. Consequently, on completion of investigation in connection with F.I.R. No.173 of 2013 of Matigara Police Station the case would have been transferred to the Court of Additional Chief Judicial Magistrate, Bidhannagar, North 24- Parganas, because Learned Additional Chief Judicial Magistrate, Siliguri is not empowered to take cognizance of the offences in connection with F.I.R. No.173 of 2013 of Matigara Police Station.
12. Thus, the facts of the present case are clearly distinguishable from the facts of "Union of India V. Ramesh Gandhi" and as such the ratio of the said decision will not be applicable in the facts of the present case.
13. By relying on "Babubhai V. State of Gujarat" reported in (2011) 1 SCC (Cri) 336 and "Amitbhai Anilchandra Shah V. Central Bureau of Investigation" reported in (2014) 1 SCC (Cri) 309, Mr. Basu contends that the second F.I.R. No.225 of 2013 of Bidhannagar (South) Police Station is liable to be quashed. In "Babubhai V. State of Gujarat" the High Court quashed the F.I.R. registered as C.R. No.1-155 of 2008 and clubbed the investigation of the said F.I.R. along with the investigation of the other F.I.R. being C.R. No.1-154 of 2008 to the extent it was feasible. The High Court also transferred the investigation to the State C.I.D. and directed new Investigating Officer to investigate the Bavla Police Station C.R. No.1-154 of 2008 as it stood earlier prior to the deletion of Section 302 of Indian Penal Code with clarification that quashing of F.I.R. registered by Bavla Police Station C.R. No.1-155 of 2008 could not mean that accused in respect of the said F.I.R. has been discharged of the offences as they would face the charges in C.R. No.1-154 of 2008. The Supreme Court held that both the F.I.Rs pertained to the two crimes committed in the same transaction and the incidents in both the cases could not be distinct and independent of each other and as such the Supreme Court opined that the High Court came to the correct conclusion for quashing the second F.I.R. being C.R. No.1-155 of 2008. The High Court also came to the conclusion that the investigation was totally biased, unfair and tainted and as such the investigation should have stood vitiated resulting in quashing of the charge sheet in both the cases. Accordingly, the Supreme Court modified the order passed by the High Court in Paragraph 34 of "Babubhai V. State of Gujarat" as follows:
"Thus, the order of the High Court requires modification to the extent that the charge sheet in both the cases and any order consequent thereto stand quashed. In case, any of the accused could not get bail because of the pendency of these appeals before this court, it shall be open to him to apply for bail or any other relief before the appropriate forum. In case, such an application is filed, we request the appropriate court to decide the same expeditiously and in accordance with law. It is further clarified that those persons who were arrested in connection with C.R. No.1-155 of 2008 would not stand arrested in connection with C.R. No.1-154 of 2008. However, if during the fresh investigation, any incriminating material against any person is discovered, the Investigating Authority may proceed in accordance with law. It shall be open to the accused to approach the appropriate forum for any interim relief as per law."
Accordingly, in "Babubhai's case" the Supreme Court quashed the second F.I.R. as both the F.I.Rs related to the offences committed in course of the same transaction and the Supreme Court also quashed the charge sheets of both the cases as the investigation carried out in connection with the first F.I.R. was biased, unfair and tainted.
14. In the instant case, there is no allegation that the investigation carried out in connection with any of the F.I.Rs is biased, unfair or tainted. Moreover, in the instant case investigation in connection with both the F.I.Rs is still in progress, whereas in Babubhai's case investigation was completed and charge sheet was submitted in connection with both the F.I.Rs by carrying out investigation which was biased, unfair and tainted. Accordingly, the ratio of "Babubhai V. State of Gujarat"
reported in (2011) 1 SCC (Cri) 336 is applicable in the facts of the present case only for the purpose of quashing of second F.I.R. No.225 of 2013, but not with regard to the quashing of investigation of both the F.I.Rs.
15. In "Amitbhai Anilchandra Shah V. Central Bureau of Investigation" reported in (2014) 1 SCC (Cri) 309 the Supreme Court 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 and as such the filing of the second F.I.R and a fresh charge sheet for the same is contrary to the provision of law and direction of the court. The Supreme Court quashed the second F.I.R. filed by C.B.I. as it was contrary to the direction issued by the Supreme Court. The proposition of law laid down by the Supreme Court in this decision is that the investigation based on the second or successive F.I.Rs not being a counter- case, filed in connection with the same or connected cognizable offence arising out of the same transaction and in respect of which pursuant to the first F.I.R. either investigation is under way or final report under Section 173(2) of the Code of Criminal Procedure 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 of Criminal procedure or under Articles 226/227 of the constitution of India. In the instant case, second F.I.R. No.225 of 2013 of Bidhannagar (South) Police Station is registered in connection with the offences in respect of which the first F.I.R. No.173 of 2013 of Matigara Police Station was also started by the Opposite Party No.2 and the additional offence punishable under Section 384 of the Indian Penal Code added during investigation of second F.I.R. No.225 of 2013 of Bidhannagar (South) Police Station arises out of the same transaction. In view of the proposition of law laid down in "Amitbhai Anilchandra Shah V. Central Bureau of Investigation", the second F.I.R. No.225 of 2013 of Bidhannagar (South) Police Station is liable to be quashed.
16. It is relevant to consider the decision cited on behalf of the Opposite Party No.2 in "Union of India V. Prakash P. Hinduja"
reported in AIR 2003 SC 2612 wherein the Supreme Court did not deal with the issue of quashing of the second F.I.R. and as such the said decision is not relevant for this case. In "Anju Chaudhary V. State of UP" reported in 2013 Cri. L. J. 776 the Supreme Court did not specifically deal with the issue of quashing of second F.I.R., but held that the law recognizes common trial or common F.I.R being registered for one series of acts so connected together as to form the same transaction as contemplated under Section 220 of the Code of Criminal Procedure. In "Lalita Kumari V. Government of UP" reported in (2014) 2 SCC 1 the Supreme Court did not deal with the issue of quashing the second F.I.R. Similarly, "D. Venkata Subramanian V. M. K. Mohan Krishnamachari" reported in (2009) 10 SCC 488 and "State of Orissa V. Saroj Kumar Sahoo"
reported in (2005) 13 SCC 540 the Supreme Court do not deal with the proposition of law for quashing of the second F.I.R. Accordingly, the above decisions cited on behalf of the Opposite Party No.2 are not relevant for the purpose of determining the issue involved in the present case.
17. I have already observed that both the F.I.Rs No.173 of 2013 of Matigara Police Station and F.I.R No.225 of 2013 of Bidhannagar (South) Police Station relate to the same offence or offences under the same transaction. I have also observed that the offences in question took place within the territorial jurisdiction of Bidhannagar (South) Police Station and not under Matigara Police Station where the first F.I.R. was lodged. It is also admitted position that the investigation in connection with both the F.I.Rs is still in progress and police report under Section 173(2) of the Code of Criminal Procedure has not yet been submitted in connection with any of the F.I.Rs. With the above factual matrix, it is relevant to rely on "Satvinder Kaur V. State" reported in 1999 SCC (Cri) 1503, wherein Satvinder Kaur made a complaint disclosing allegation of torture and dowry demand against her husband and parents-in-law at Patiala where she used to reside in her matrimonial home. Subsequently, she came to Delhi and lodged another complaint against her husband in the Women's Cell, Delhi where a case was registered under Section 406 and 498A of the Indian Penal Code for the alleged offences at Patiala. The Delhi High Court quashed the criminal proceeding started at Delhi on the ground that the Investigating Officer of Delhi had no territorial jurisdiction to investigate the offence which took place at Patiala. By setting aside the decision of the Delhi High Court, it is held by the Supreme Court: i) that the S.H.O of the police station has statutory authority under Section 156 of the Code of Criminal procedure to investigate any cognizable offence for which F.I.R is lodged and no proceeding of a police officer shall be challenged on the ground that he has no territorial jurisdiction to investigate the offence as laid down in Section 156(2) of the Code of Criminal Procedure, ii) that there is no question of interference under Section 482 of the Code of Criminal Procedure at the stage of investigation on the ground that the investigating officer has no territorial jurisdiction and
iii) that after investigation is over, if the investigating officer arrives at a conclusion that cause of action for lodging F.I.R. has not arisen within his territorial jurisdiction, then he is required to submit a report under Section 170 of the Code of Criminal Procedure, so as to forward the case to the Court of Learned Magistrate empowered to take cognizance of the offence. Moreover, if the investigating officer arrives at a conclusion that the crime was not committed within the territorial jurisdiction of the Police Station, then F.I.R. can also be forwarded to the Police Station having territorial jurisdiction over the area in which crime is committed for investigation. In the instant case, it is submitted on behalf of the Opposite Party State that an application is filed before the Court of Learned Additional Chief Judicial Magistrate, Siliguri for transfer of investigation of Matigara Police Station Case No.173 of 2013 to the Inspector-in-charge of Bidhannagar (South) Police Station on the ground that the offences in question took place within the territorial jurisdiction of Bidhannagar (South) Police Station, but no order has yet been passed on the said application by Learned Magistrate.
18. In view of the proposition of law laid down by the Apex Court in "Babubhai V. State of Gujarat" reported in (2011) 1 SCC (Cri) 336, "Amitbhai Anilchandra Shah V. Central Bureau of Investigation" reported in (2014) 1 SCC (Cri) 309 and "Satvinder Kaur V. State" reported in 1999 SCC (Cri) 1503, I am inclined to quash the second F.I.R. being Bidhannagar (South) Police Station Case No.225 of 2013 dated 19.12.2013 under Section 420/406/120B/34/384 of the Indian Penal Code and transfer the investigation of F.I.R. No.173 of 2013 dated 08.04.2013 under Section 406/420/120B of Indian Penal Code from Matigara Police Station to Bidhannagar (South) Police Station as the offences in question have taken place within the territorial jurisdiction of Bidhannagar (South) Police Station and Learned Additional Chief Judicial Magistrate, Bidhannagar is empowered to take cognizance of the offences in question. Thus, it is ordered that the F.I.R. No.225 of 2013 dated 19.12.2013 of Bidhannagar (South) Police Station is quashed. The F.I.R. No.173 of 2013 dated 08.04.2013 of Matigara Police Station is transferred from Matigara Police Station to Bidhannagar (South) Police Station with immediate effect. The investigating officer of F.I.R. No.173 of 2013 dated 08.04.2013 of Matigara Police Station will hand over the entire materials collected by way of investigation of the said case to the Inspector-in-charge of Bidhannagar (South) Police Station, who will carry out the investigation of the said case and on completion of investigation will submit police report under Section 173(2) of the Code of Criminal Procedure, 1973 in the Court of Learned Additional Chief Judicial Magistrate, Bidhannagar. The Commissioner of Police, Bidhannagar and the Superintendent of Police, Darjeeling will ensure compliance with the direction given by this Court. The Criminal Revision is, thus, disposed of.
Let a plain copy of this order countersigned by the Assistant Registrar (Court) be handed over to Learned Public Prosecutor, High Court for communication to (i) the Commissioner of Police, Bidhannagar, (ii) the Superintendent of Police, Darjeeling, (iii) the Investigating Officer of F.I.R. No.173 of 2013 of Matigara Police Station and (iv) the Inspector-in-charge of Bidhannagar (South) Police Station for favour of information and compliance with the direction given by this Court. The Department is directed to send down a copy of this judgement to Learned Additional Chief Judicial Magistrate, Siliguri and Learned Additional Chief Judicial Magistrate, Bidhannagar for favour of information.
Urgent Xerox certified copy of this judgment, if applied for, be given to the parties expeditiously after compliance with all necessary formalities.
(R. K. Bag, J.)