Gauhati High Court
Page No.# 1/8 vs Page No.# 2/8 on 3 April, 2025
Page No.# 1/8
GAHC010025822015
2025:GAU-AS:3965
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(Crl.)/16/2015
KABIR AHMED CHOUDHURY and 4 ORS
S/O LT. ABDUR ROUF CHOUDHURY, R/O VILL- JABDA, P.O. MANIKGANJ,
P.S. and DIST. KARIMGANJ, ASSAM.
2: SRI JAKIR AHMED CHOUDHURY
S/O LT. ABDUL KAYUM CHOUDHURY
R/O VILL- JABDA
P.O. MANIKGANJ
P.S. and DIST. KARIMGANJ
ASSAM.
3: SRI SHAMIM UDDIN CHOUDHURY @ SAMIM AHMED CHOUDHURY
S/O LT. SAFIQUL HAQUE CHOUDHURY
R/O VILL- SUPRAKANDI
P.O. MANIKGANJ
P.S. and DIST. KARIMGANJ
ASSAM.
4: SRI FARUQUE AHMED CHOUDHURY
S/O LT. ABDUL MANNAN CHOUDHURY
R/O VILL- JABDA
P.O. MANIKGANJ P.S. and DIST. KARIMGANJ
ASSAM.
5: SRI SHALIM UDDIN CHOUDHURY @ NAZIM UDDIN AHMED
CHOUDHURY
S/O LT. ABDUL HOQUE CHOUDHURY
R/O VILL- JABDA
P.O. MANIKGANJ
P.S. and DIST. KARIMGANJ
ASSAM
VERSUS
Page No.# 2/8
THE STATE OF NAGALAND AND 7 ORS
REP. BY THE SECRETARY TO THE GOVT. OF NAGALAND, DEPARTMENT
OF HOME.
2:THE SUPERINTENDENT OF POLICE
MON DISTRICT
NAGALAND.
3:THE OFFICER-IN-CHARGE
NAGINIMARA POLICE STATION
NAGINIMARA
DIST.MON
NAGALAND.
4:THE SUPERINTENDENT OF POLICE
KARIMGANJ
ASSAM.
5:THE OFFICER-IN-CHARGE
KARIMGANJ POLICE STATION
KARIMGANJ
ASSAM.
6:SRI T. WORKLAND KONYAK
NAGINIMARA
DIST. MON
NAGALAND-798622.
7:SRI AYE KONYAK
NAGINIMARA
NAGALAND-798622.
8:SRI ABDUL AHAD CHOUDHURY
S/O LT. TAHIDUR RAHMAN CHOUDHURY
VILL and P.O. SUTARKANDI
P.S. KARIMGANJ DIST. KARIMGANJ
ASSAM
Advocate for the Petitioner : MR.J PATOWARY, MR.D BAIDYA,MS.C CHOUDHURY,MR.A M
BORA
Advocate for the Respondent : MR.B SAHARIAR-8, GA, NAGALAND,MR.R DEV(R-7),MR.J U N
M LASKAR(R-8),MS. A AHMED(R-8),GA, ASSAM,MS.F BEGUM(R-8),MR.S BORTHAKUR(R-
Page No.# 3/8
6),MRP GOGOI(R-6)
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 03-04-2025 Heard learned Senior Counsel Mr. A.M. Bora for the petitioner Nos. 1. Sri Kabir Ahmed Choudhury, 2. Sri Jakir Ahmed Choudhury, 3. Sri Shamim Uddin Choudhury @ Samim Ahmed Chouhdury, 4. Sri Faruque Ahmed Choudhury and
5. Sri Shalim Uddin Choudhury @ Nazim Ahmed Choudhury, who have filed this application under Article 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure, 1973 (CrPC for short) with prayer for quashing the FIR dated 26.05.2015 registered as Naginimara Police Station Case No. 7/2015 under Section 464/465/468/471/472/473/474/482/34 of Indian Penal Code, 1860 (IPC for short) against the petitioners.
2. It is submitted on behalf of the petitioners that a similar FIR with similar allegations arising out of the same cause of action (filed by the respondents Sri T. Woklang Konyak and Sri Aye Konyak), was lodged by the respondent No. 8 Sri Abdul Ahad Choudhury earlier on 17.04.2015 and was registered as Karimganj Police Station Case No. 315/2015 under Section 341/323/427/379/ 471/420/506/34 of IPC. The informant Abdul Ahad Choudhury is an exporter/importer of coal from India to Bangladesh and has permits for his business. It is alleged that some exporters in connivance with the Custom Officials of Sutarkandi Land Custom Station used to deal in the export business to Bangladesh by using forged and fake invoices, challans shown to be issued by the Government of Assam and Meghalaya causing heavy loss to the Page No.# 4/8 Government revenue.
3. On 26.02.2015, the respondent Nos. 6 and 7 executed an agreement in favour of the informant, respondent No. 8 regarding supply of 50,000 MT of coal from the period 26.02.2015 up-to 26.02.2016. While the respondent No. 8 was effecting export of coal to Bangladesh, he learnt that several exporters with the help of false and fake documents, were exporting coal. A complaint was lodged by the informant on 04.03.2015 before the Director, CBI, New Delhi and enquiry was initiated and several challans were seized during the enquiry.
4. It is alleged that on 11.04.2015, respondent Nos. 6 and 7 also submitted complaint before the Superintendent of Customs, Sutarkandi Land Customs Station that they have issued invoices/T.P. challans only to respondent No. 8 and not to any other exporters and prayed for necessary action against the fake documents procured by the accused named in the FIR. Further on 16.04.2014 while the informant was exporting coal to Bangladesh, the accused restrained 20 vehicles belonging to the informant at no-mans land (Customs and BSF area) and assaulted the informant and his driver and handyman and damaged 20 coal loaded trucks. The members of Yuva Parishad also threatened the informant with dire consequences and exercised pressure to informant/respondent No. 8 to withdraw the complaint dated 04.03.2015 submitted before the Director, CBI, New Delhi. The members of Yuva Parishad also unloaded the aforesaid coal from the trucks and in connivance with the Superintendent of Customs, Sri Swapon Roy exported the said coal belonging to the informant illegally in 12 trucks in their own name.
5. It is further alleged that Yuva Parishad is also involved in forging challans, Page No.# 5/8 invoices, T.P. etc. to export coal to Bangladesh. It is submitted that prior to the incident of 16.04.2015 at 10.00 AM, the Superintendent and Inspector, Sutarkandi Land Custom Station intimated accused Abdul Hafiz Choudhury, Secretary, Yuva Parishad and other members of Yuva Parishad that the challans submitted by them between 09.04.2015 to 16.04.2015 were 95% fake. It is further alleged that the accused persons apprehending that the informant/respondent No. 8 would lodge criminal cases against them, hurriedly lodged 3 FIRs, with false and fabricated allegations against the respondent No. 8 and few others and these FIRs were registered as Karimganj Police Station Case No. 294/2015, Karimganj Police Station Case No. 293/2015 and Karimganj Police Station Case No. 298/2015 along with two C.R. Cases.
6. The accused persons have also been threatened the informant to eliminate his minor daughter and she was finally killed on 23.03.2011 subsequent to the date when Karimganj Police Station Case No. 137/2011 was registered.
7. A similar FIR was lodged on 22.04.2015 by T. Woklong Konyak as Karimganj Police Station Case No. 349/2015 and an FIR arising out of the same cause of action was lodged on 26.05.2015 by T. Woklang Konyak and Aye Konyak, respondent Nos. 6 and 7 and this case was registered as Naginimara Police Station Case No. 07/2015.
8. I have scrutinized all the three FIRs. It is true that Naginimara Police Station Case No. 07/2015 and Karimganj Police Station Case No. 315/2015 arises out of the same cause of action and the same incident between the same parties and this FIR was lodged on 17.04.2015, whereas the FIR registered as Naginimara Police Station Case No. 07/2015 was lodged on 26.05.2016.
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9. Heard Ms. A. Aier and Ms. M. Kechii, learned counsel for the respondent Nos. 1, 2 and 3, who have stated that they are not pursuing the matter relating to Naginimara Police Station Case NO. 07/2015.
10. It is also submitted that the FIR registered as Naginimara Police Station Case No. 07/2015 was not lodged under proper jurisdiction as Sutarkandi falls under the jurisdiction of Karimganj Police Station and not under Naginimara Police Station.
11. The incident of 16.04.2015 is also in the no-mans land BSF border area and Sutarkandi Land Customs Station is also in the border area between India and Bangladesh.
12. Learned Senior Counsel for the petitioner has relied on the decision of the Hon'ble Supreme Court in T.T. Antony Vs. State of Kerala and others reported in (2001)6 SCC 181 wherein, it has been held and observed that :
"18. An information given under sub-section (1) of Section 154 of CrPC is commonly known as first information report (F.I.R.) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 of CrPC, as the case may be, and forwarding of a police report under Section 173 of CrPC. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 of CrPC. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report - FIR postulated by Section 154 of CrPC. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in Page No.# 7/8 conformity with the scheme of CrPC. Take a case where an FIR mentions cognizable offence under Section 307 or 326 I.P.C. and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Section 302 I.P.C. need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H - the real offender-who can be arraigned in the report under Section 173(2) or 173(8) of Cr.P.C., as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused.
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 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 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, may be a fit case for exercise of power under Section 482 Cr.P.C. or under Article 226/227 of the Constitution.
13. Learned Senior Counsel for the petitioner has also relied on the decision of the Hon'ble Supreme Court in Babubhai Vs. State of Gujarat and others reported in (2010) 12 SCC 254 wherein, it has been held and observed that :
"20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of a cognizable offence recorded by the Officer In-Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police Officer In- charge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C.
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21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted."
14. In the light of the decision of the Hon'ble Supreme Court in T.T. Antony's case and Babubhai's case, the impugned FIR dated 26.05.2015 as Naginimara Police Station Case No. 07/2015 is hereby set aside and quashed.
15. In terms of above observation, this petition stands disposed of.
JUDGE Comparing Assistant