Orissa High Court
Baishnab Charan Senapati & Another vs Republic Of India on 3 July, 2014
Author: I.Mahanty
Bench: Indrajit Mahanty
THE HIGH COURT OF ORISSA : CUTTACK
CRLREV NO.1450 OF 2010
In the matter of an application under Section 401 of the Code of
Criminal Procedure.
--------------
Baishnab Charan Senapati & Another ...... Petitioners
-Versus-
Republic of India ...... Opp. Party
For Petitioners : Mr. B.M.Pattnaik, Sr. Advocate,
M/s. A. Sahoo & P.R. Patnaik.
For Opp. Party : Mr. S.K.Padhi, Sr. Advocate.
M/s. M.Padhi
---------------
PRESENT:
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.
Date of Judgment: 03.07.2014
I. Mahanty, J.In this application under Section 401 Cr.P.C., the accused-
petitioners have sought to challenge an order dated 06.12.2010 passed in T.R. No.11 of 2009, whereby, the learned Special Judge (C.B.I), 2 Bhubaneswar has been pleased to reject a petition filed by the accused petitioners under Section 227 Cr.P.C. for discharge.
2. Mr. B.M. Pattnaik, learned Sr. Advocate appearing for the accused-petitioners submitted that on 31.01.2005, R.C. No.3(A) of 2005 came to be registered against the accused-petitioner No.2 (Sudhiranjan Senapati) and some other officials of the Income Tax Department under Section 120(B)/420 I.P.C. and under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. In course of investigation, certain documents were seized from the possession of the accused-petitioner No.1 (Baishnab Charan Senapati) and on 05.04.2005 R.C. No.18 (A) of 2005 i.e. the present case came to be registered against both the accused-petitioners.
It appears that insofar as R.C. No.3(A) of 2005 is concerned, the investigation into the said case concluded with submission of a Final Report on the ground of insufficient evidence and, accordingly, directions were issued therein to return the seized property to the persons entitled to the possession thereof. Alleging inaction on the part of the I.O. in releasing such property, Criminal Revision Case No.399 of 2007 came to be filed by the accused-petitioner No.1 before this Court. The Investigating Officer filed an affidavit in the aforesaid Criminal Revision submitting that the seized items in R.C. No.3(A) of 2005 had been taken away by the I.O. and seized in R.C. No.18(A) of 3 2005 and insofar as the present R.C. Case No.18(A) of 2005 is concerned, the I.O. submitted the charge sheet on 30.04.2009.
3. The main argument of the counsel for the petitioners herein was that, there was a lapse of more than four years in filing the charge sheet in R.C. No.18(A) of 2005 and that the charge sheet came to be filed on 30.04.2009 only because the accused-petitioner No.1 has moved this Court in WPCRL No.286 of 2009 seeking quashing of such illegal investigation. The main contention advanced by the learned counsel for the accused-petitioners was that, the court below ought not to have considered the prosecution case since it had proceeded to base the prosecution on the self same set of evidence collected in the other case i.e R.C. No.3 (A) of 2005 which had already been closed by the prosecution and for which reasons the impugned order is likely to be set aside.
In this respect, Mr. Pattnaik, learned Sr. Advocate appearing for the accused-petitioners plaing reliance on the judgment of the Hon'ble Supreme Court in the case of T.T.Antony vs. State of Kerala and others, AIR 2001 S.C. 2637, submitted that it is well settled principle of law that for one cause of action there cannot be two F.I.Rs., particularly when investigation is going on in the first F.I.R. and it is asserted that in the instant case while investigation was going 4 on into R.C. No.3(A) of 2005, a second F.I.R. in R.C. No.18(A) of 2005 came to be registered on 05.04.2005.
4. Mr. S.K. Padhi, learned Sr. Advocate appearing for the C.B.I., on the other hand, placed reliance on the judgment of the Hon'ble Supreme Court in the case of Rameshchandra Nandlal Parikh vs. State of Gujarat & Another, (2006) 1 S.C.C. 732 wherein the Hon'ble Supreme Court held that in case the F.I.R.s are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offence, there is no prohibition in accepting the second F.I.R. Reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of Babubhai Vs. State of Gujarat & Ors., 2010 AIR SCW 5126, wherein the Hon'ble Supreme Court held that where the version of the second F.I.R. is different and they are in respect of the two different incidents/crimes, the second FIR is permissible.
It is asserted on behalf of the C.B.I. that the scope of investigation for an offence under Section 13(1)(e), under Section 13(1)(d) or under Section 7 of the P.C. Act are altogether different. In the case of an offence under Section 13(1)(e), the investigation is normally elaborate and prolonged in order to establish a charge of an accused having disproportionate assets and charge sheet is only submitted once it is finally determined that the accused is found in 5 possess of disproportionate assets to his known source of income. In such an offence the accused can prove in course of the trial that the prosecution has not taken into account all known sources of income while considering the total assets.
5. The accused persons in the present case are public servants. In case of an offence under Section 13(1)(d) of P.C. Act, a person is charged if he commits an offence by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage or by abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage.
6. Mr. Padhi, learned Sr. Standing Counsel for the C.B.I. drew the aforesaid distinction vis-à-vis the registration of R.C. No.3(A) of 2005 and R.C. No.18(A) of 2005. Accordingly, he submits that the parameter of investigation for offences under Section 13(1)(e) and 13(1)(d) being different and distinct, separate F.I.R. was registered for each of the offences.
7. On perusal of the case laws cited by the learned senior counsel for both the sides, I am in agreement with the submissions advanced by the counsel for the C.B.I. and in particular, the judgment rendered by the Hon'ble Supreme Court in the case of 6 Rameshchandra Nandlal Parikh (Supra). The relevant portion of the said judgment is quoted hereunder.
"14. There is a further distinction in that while First C.R. No. 67/2001 pertained to cases concerning one Ketan Parikh and entities associated with him in the crime, the subsequent complaints pertained to other parties. Further, the FIR being investigated pertained only to criminal acts relating to the Mandvi Branch (Mumbai), while the subsequent complaints being investigated by the State Police pertained to criminal acts at the Shahibaug (Ahmedabad) Branch of the Bank. In our view, the distinctions drawn by the High Court are fully justified. The High Court was right in observing that the FIRs, which were under challenge before it, were regarding independent and distinct offences. Hence, the FIRs could not be prohibited on the ground that some other FIR had been filed against the Petitioner in respect of other allegations made against the Petitioner."
I am also in agreement with the submission advanced by the counsel for the C.B.I. in view of the judgment rendered by the Hon'ble Supreme Court in the case of Babubhai (Supra). The relevant portion of the said judgment is quoted hereunder.
"17. 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 7 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.
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.
18. The instant case is required to be examined in the light of the aforesaid settled legal propositions. If the two FIRs are read together, it becomes clear that the incident started in the morning as per both the FIRs. C.R. No.I-154/2008, lodged by Mr. M.N. Pandya, Sub Inspector of Police stated that he reached the place of occurrence after receiving the information from the police station and found that mob had already dispersed. The case of the prosecution is that when the police reached the place of occurrence of the first incident, the mob had already dispersed, could not be correct for the reason that some of the witnesses have stated that the clash was going on when the police arrived and police resorted to force to disperse the mob. In fact, it was the police who summoned the ambulances which took the injured persons to hospitals. In the first incident as per the said FIR the place of occurrence had been village Dhedhal near the pond. In the pond, the damaged tractor, motor cycle and chhakda were found. Mr. M.N. Pandya called the extra police force and went inside the village. He found 2000- 4000 persons and witnessed a free fight between them. The Koli Patels had surrounded some of the houses of the Bharwads. Some persons had been locked inside 8 their houses and they had also put their houses at fire. The superior officers also came there. Police has used force to disperse the mob in the said incident and there were heavy casualties and there was loss of lives also. If we examine minutely the FIR in C.R. No.I-155/2008, the incident also occurred near the pond in the village Dhedhal. The damaged tractor, motor cycle and chhakda were there in the pond. One person Ajitbhai Prahladbhai was killed in the incident. Babubhai Popatbhai Koli Patel also got injured. While comparing both the FIRs there is no doubt that both the incidents had occurred at the same place in close proximity of time, therefore, they are two parts of the same transaction. More so, the death of Ajitbhai Prahladbhai has been mentioned in both the FIRs. From the report for deletion of Section 302 IPC, it is apparent that it is not the case of the Investigating Officer that the death of Ajitbhai Prahladbhai had not occurred during the course of the incident in connection with which C.R. No.I-154 of 2008 came to be registered."
8. In view of the aforesaid authoritative pronouncements of the Hon'ble Supreme Court, the present CRLREV filed by the accused- petitioners stands dismissed.
.............................
I.Mahanty,J.
ORISSA HIGH COURT : CUTTACK 3rd July, 2014/PKP