Uttarakhand High Court
Sardar Narendra Pal Singh vs State Of Uttarakhand And Another on 1 October, 2021
Author: R.C. Khulbe
Bench: R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Crl. Misc. Application (C-482) No.585 of 2009
Sardar Narendra Pal Singh .......Applicant
Versus
State of Uttarakhand and another ....Respondents
Mr. Piyush Garg, learned counsel for the applicant.
Mr. Pankaj Joshi, learned B.H. for the State.
None is present for respondent no.2, though sufficiently
been served.
Hon'ble R.C. Khulbe, J.
By way of present application, moved under Section 482 of Cr.P.C., applicant seeks to quash the entire proceedings of criminal case no.444 of 2008 (arising out of case crime no.209 of 2007), U/s 468, 467, 471, 420, 427, 504 and 506 IPC, Police Station Rishikesh, District Dehradun pending before Judicial Magistrate, Rishikesh.
2. Heard learned counsel for the applicant as well as learned State counsel.
3. Facts in brief are that the respondent Sunil Nagpal submitted information with police station Rishikesh on 05.02.2001 against the applicant which was registered as FIR No.58 of 2001. After the investigation, charge sheet was submitted. Accordingly, cognizance was taken on it. The criminal case was registered as 901 of 2001, State Vs. Narendra Pal Singh, in which the prosecution adduced the evidence. After hearing both the parties trial Court reached to the conclusion that the prosecution has failed to produce ample evidence. Accordingly, the applicant was acquitted on 15.12.2009. Aggrieved by it, the complainant filed an appeal no.06 of 2013, which was allowed by the appellate Court. The appellate Court observed that the trial Court 2 did not assess the evidence properly and, accordingly, came to this conclusion that there is ample evidence against the applicant. Accordingly, the appeal was allowed vide order dated 07.06.2018. The applicant was convicted U/s 467 and 468 IPC only while order of his acquittal under other sections was affirmed by the appellate Court as passed by the trial Court. Feeling aggrieved by it, the informant filed an appeal no.168 of 2018 before this Court, which is pending.
4. The respondent submitted an application in the year 2007 U/s 156 (3) Cr.P.C. for lodging an FIR against the applicant. Accordingly, on the basis of the said application, the concerned Court ordered for lodging FIR, which was registered as FIR No.209 of 2007, U/s 420, 467, 468, 471, 427, 504 and 506 IPC with police station Rishikesh in which, the investigation was conducted and charge sheet was submitted. Accordingly, on the basis of the said FIR a criminal case no.444 of 2008, "State Vs. Narendra Pal Singh" was registered before Judicial Magistrate, Rishikesh. The concerned Court took cognizance on 07.04.2008.
5. The present application has been filed U/s 482 Cr.P.C. for quashing the entire proceedings of criminal case no.444 of 2008 pending before the Judicial Magistrate, Rishikesh.
6. It is argued by learned counsel for the applicant that the informant had already submitted an application on 05.02.2001 before the Police Station Rishikesh regarding 150 shares which were sold out by Nishit Ranjan to the informant regarding an amount of Rs.231206.60 in which after completion of investigation, charge sheet was submitted and ultimately, the applicant has been acquitted by the trial Court but convicted by 3 the appellate Court and the appeal against which is pending before the High Court. The respondent had no right to file the application U/s 156(3) Cr.P.C. with the same sets of allegations. The concerned Court did not notice this fact and simply, on the basis of charge sheet, took cognizance.
7. 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 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 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 4 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 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 under Section 482 Cr.P.C. or under Articles 226/227 of the Constitution.
8. He further placed reliance on Priyanka Srivastava Vs. State of U.P. (2015) 6 SCC 287 in which Hon'ble Apex Court has held that:-
27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order.
The present is a case where the accused persons are serving in high positions in the Bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.
28. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in society and also reflects the 5 erroneous approach of the learned Magistrate. It also encourages unscrupulous and unprincipled litigants, like Respondent 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, Respondent 3 had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the Appellant 1, who is presently occupying the position of Vice-President, neither was the loan taken, nor was the default made, nor was any action under the SARFAESI Act taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present Appellant 1. We are only stating about the devilish design of the Respondent 3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance with Section 154(3), indicating it has been sent to the Superintendent of Police concerned.
29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.
30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be 6 well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
9. Learned counsel for the State although opposed the application but fairly submitted that in the earlier FIR dated 05.02.2001 total share (150) have been mentioned.
10. From the perusal of the FIR No.58 of 2001, the informant clearly mentioned the total shares as 150. Not only this, the amount of Rs.231206.60 has also been mentioned. In the second FIR dated 04.04.2007, the informant also mentioned the above shares and in the charge sheet dated 03.02.2008, the above amount has been mentioned by the I.O. In criminal case no.901 of 2001, State Vs. Narendra Pal Singh, the respondent- informant submitted an application on 18.03.2008 U/s 311 Cr.P.C. for adducing other evidence regarding the documents submitted along with application.
11. From the perusal of the application dated 18.11.2002, it is clear that the respondent had knowledge about the 150 shares. He clearly mentioned the above facts before the Investigating Officer, Rishikesh in which the total amount was shown Rs.231206.60. From the above, it is clear that in the first FIR the respondent had submitted the information regarding 150 shares and again he filed the application U/s 156(3) 7 Cr.P.C. with the same sets of allegations. The Hon'ble Apex Court in Amitbhai Anilchandra Shah Vs. C.B.I. (2013) 6 SCC 348, held that:-
"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 12.01.2010 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' .
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. Anthony, 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 paragraph Nos. 19, 20 and 27 of that judgment are relevant which read as under:
"19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC 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 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. 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 8 more further reports; this is the import of sub- section (8) of Section 173 CrPC.
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 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. 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 CrPC.
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 CrPC 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) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, 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 under way or final report 9 under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
12. Further in Prem Chandra Singh Vs. State of Uttar Pradesh (2020) 3 SCC 54 it is held that:-
"10. The respondent then filed an application under Section 156(3) Cr.P.C. which was forwarded by the Magistrate to the police leading to registration of FIR dated 09.10.2008. The allegations are similar that the appellant put up an imposter in place of the respondent and along with one Sushil Kumar Singh and Arvind on the basis of a general power of attorney, which the respondent had never executed, sold his lands. The FIR itself recites that earlier also the appellant had sold the lands of the respondent on the basis of same general power of attorney, but conceals the order of acquittal dated 07.08.1998, and also the institution of Civil Suit No.353 of 2007 for annulment of the same.
11. It is, therefore, apparent that the subject matter of both the FIRs is the same general power of attorney dated 02.05.1985 and the sales made by the appellant in pursuance of the same. If the substratum of the two FIRs are common, the mere addition of Sections 467, 468 and 471 in the subsequent FIR cannot be considered as different ingredients to justify the latter FIR as being based on different materials, allegations and grounds."
13. From the perusal of the cognizance order dated 07.04.2008, it is clear that the concerned Magistrate took the cognizance, simply, on the basis of charge sheet. He did not mention any reason in the cognizance order. Cognizance order was passed in a mechanical way. The Hon'ble Apex Court in Criminal Appeal No.1047-1048 of 2021 dated 27.09.2021, Ravindranatha Bajpe Vs. Mangalore Special Economic Zone Ltd. & Others Etc (CRLA Nos.1047-1048 of 2021 decided on 27.9.2021) held that:-
"8.2. As observed by this Court in the case of Pepsi Foods Ltd. v. Special Judicial 10 Magistrate, (1998) 5 SCC 749 and even thereafter in catena of decisions, summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. In paragraph 28 in Pepsi Foods Limited (supra), it is observed and held as under:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
14. From the above, it is clear that in the criminal case no.901 of 2001, State Vs. Narendra Pal Singh, the applicant has been convicted by the Appellate Court. In the FIR dated 05.02.2001, the informant has already mentioned all the allegations regarding 150 shares. The informant had no right to file an application U/s 156(3) Cr.P.C. with the same sets of allegations. If the applicant has already been convicted regarding the forged shares as mentioned in the earlier FIR No.58 of 2001, accordingly, the concerned Magistrate has no power to lodge an FIR regarding the same set of allegations, which is barred by the law as laid down by the Hon'ble Apex Court.
1115. In view of the above observations, the present criminal misc. application filed U/s 482 Cr.P.C. is liable to be allowed and the same is allowed. Consequently, the entire proceedings of criminal case no.444 of 2008 (arising out of case crime no.209 of 2007), U/s 420, 467, 468, 471, 427, 504 and 506 IPC, Police Station Rishikesh, District Dehradun pending before the Judicial Magistrate, Rishikesh is hereby quashed qua the applicant.
16. Pending applications, if any, also stand disposed of accordingly.
(R.C. Khulbe, J.) 01.10.2021 Sukhbant