Karnataka High Court
Sri Katta Subramanya Naidu vs State Of Karnataka on 29 April, 2016
Equivalent citations: 2016 (3) AKR 100
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL 2016
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
CRIMINAL REVISION PETITION NO.432 OF 2013
BETWEEN:
SRI KATTA SUBRAMANYA NAIDU ... PETITIONER
(BY SRI: K.G. RAGHAVAN, LEARNED SR. COUNSEL)
AND:
STATE OF KARNATAKA
BY LOKAYUKTHA POLICE, BANGALORE. ... RESPONDENT
(By Sri: VENKATESH P DALWAI , LEARNED SPP) ORDER ON THE MEMO FILED BY THE PETITIONER -
ACCUSED NO.1 ON 30.03.2016 FOR SETTING ASIDE THE IMPUGNED ORDER Petitioner herein is the accused No.1 in Crime No.57/2010, a case is registered by the respondent - Lokayukta police. After concluding investigation, charge sheet is filed against the petitioner and others for the offences 2 punishable under Sections 7, 8, 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act and Sections 419, 420, 465, 468, 471 read with Section 120-B of IPC. There are in all 9 accused inclusive of this petitioner. After concluding investigation, case is registered as Spl.C.C.No.135/2011 and is pending before the XXIII Additional City Civil and Sessions Judge, Bangalore City.
2. Objections have been filed to this memo by the respondent - Lokayukta.
3. Present petition is filed under Section 397 of Cr.P.C. challenging the order passed by the learned XXIII Additional City Civil and Sessions Judge, Bangalore City on 29.04.2013 in S.C.No.135/2011. This petitioner had filed an application seeking his discharge in terms of Section 227 of Cr.P.C. and the said application came to be dismissed by virtue of detailed order passed by the learned Special Judge on 29.04.2013. Several grounds have been urged in the present revision 3 petition. Matter is already admitted and the case is posted for final hearing.
4. During the pendency of the revision petition, another application came to be filed on behalf of this petitioner in terms of Section 397(1) of Cr.P.C. read with Section 401 of Cr.P.C. to raise additional grounds on his behalf.
5. Accused No.3 - Mr.Srinivas had filed a petition under Section 482 of Cr.P.C. before this Court in Crl.P.No.5102/2015 requesting the Court to quash the proceedings initiated against him in Crime No.57/2010 and consequent charge sheet bearing No.4/2011. The said petition is allowed after contest vide order dated 10.03.2016 by the learned Judge dealing with Crl.P.No.5102/2015. Ultimately, the FIR registered in Crime No.57/2010 of Lokayukta Police Station, Bangalore City and charge sheet filed and registered in Spl.C.C.No.135/2011 is quashed insofar as accused No.3 - Srinivas is concerned. In view of 4 the subsequent event of quashing the proceedings against accused No.3 - Srinivas, this petitioner who is accused No.1 has come up with a memo requesting the Court to set aside the impugned order passed by the learned Sessions Judge on 29.04.2013 rejecting the application filed under Section 227 of Cr.P.C and thereby allow the revision petition or to remand the matter to the trial Court for fresh consideration of the discharge application of the petitioner, in view of the subsequent event of quashing the proceedings against accused No.3 by a co-ordinate Bench of this Court. The memo filed on 30.03.2016 before this Court is as follows:
Memo The undersigned herein submits that the Petitioner herein is arrayed as Accused No.1 in Crime No. 57/2010 resulting in charge sheet in Spl CC 135/2011. As per the contention of the Respondent the origin of the alleged crime originates from Accused No.3 in the said case. Accused No.3 had challenged the proceedings in Spl.CC 135/2011 before this Hon'ble Court in Crl.5
Pet 5102/2015 and this Hon'ble Court by its order dt; 10.03.2015 was pleased to quash the proceedings as against Accused No.3 in Crime No. 57/2010 and its resultant chargesheet in Spl C.C. 135/2011. This Hon'ble Court has also held that the very registration of Crime No. 57/2010 was illegal.
In the circumstances the Petitioner herein who is arrayed as Accused No.1 in Spl CC 135/2011 also stands in an identical situation as Accused No.3. Since the quashing of the proceedings as against Accused No.3 and the finding of this court in Crl. Pet 5102/2015 is a subsequent event, the Petitioner herein prays this Hon'ble court to set- aside the impugned order and allow the aforesaid Criminal revision Petition or remand the matter back to the trial court for fresh consideration of the discharge application of the Petitioner herein as all the lower court records and relevant records are before the trial court and as the trial court has already taken into account the aforesaid subsequent event, in the interest of justice.6
6. Sri.Venkatesh P.Dalwai, learned counsel representing Lokayukta has filed detailed objection to the memo stating that the memo is misconceived and cannot be entertained in law. It is contended that a co-ordinate Bench of this Court, while dealing with Crl.P.No.5102/2015 has specifically given a finding that accused Nos.1 and 2 had received bribe to approve the application submitted by M/s.ITASCA Software Development Pvt. Limited, company run by accused No.3 and that the learned Special Judge has also discussed this aspect in detail. Hence, it is contended that the matter will have to be disposed of on merit insofar as it relates to the grounds raised in the revision petition and hence memo is totally misconceived. It is contended that the order dated 10.03.2016 passed in Crl.P.No.5102/2015 is contrary to the law laid down by the Hon'ble Apex Court in Amitbhai's case The benefit granted to other party on the mistaken notion or contrary to the Apex Court decision will 7 not be binding on the respondent or on this Court, is the submission.
7. It is submitted by Sri.Venkatesh Dalwai, learned counsel that the learned Judge of the trial Court has passed detail order referring to various documents and statements of witnesses recorded by the Investigating Officer during the course of investigation and that they will have to be examined during the course of trial. It is submitted that the investigation done relating to Crime No.57/2010 is with reference to a larger conspiracy when this petitioner who was a Minister for Industry in Government of Karnataka at that relevant point of time. Since the Investigation relating to Crime No.57/2010 was wider, there was no prohibition to register fresh FIR or Crime No.57/2010. Hence, he has requested this Court to dismiss the memo.
8. Sri.K.G.Raghavan, learned counsel representing the petitioner has submitted his argument at length contending 8 that the learned Judge of the co-ordinate bench has dealt with the matter at length and therefore the parity is to be made applicable to the present petitioner also. He has submitted that this Court cannot sit in judgment over the decision taken by co-ordinate bench of this Court and therefore it is virtually binding on this Court. He has argued that the correctness or otherwise of the order passed on 10.03.2016 in Crl.P.No.5102/2015 cannot be indirectly or collaterally challenged in this petition and only remedy available to Lokayukta is to approach the Hon'ble Apex Court by filing a special leave petition.
9. After going through the records and hearing SriK.G.Raghavan, learned senior counsel appearing for the petitioner and Sri.Venkatesh P.Dalwai, representing the Lokayukta, following point arise for consideration:
"Whether memo filed on behalf of the petitioner - accused No.1 is to be accepted on the basis of the 9 order passed by this Court in Crl.P.No.5102/2015 dated 10.03.2016?"
10. There are in all 9 accused in Spl.C.C.No.135/2011. The names of the accused and offences alleged against them are as follows:
11. A proposal had been prepared for acquisition of 1375 acres of agricultural lands in Bandikodgehalli village, Hoovinayakana village, Mahadevakodigehalli and Bagalur village, Jala Hobli, Bangalore North Taluk for the establishment of Hardware park, by the Ministry of Industry, Government of Karnataka through K.I.A.D.B. According to the accused the acquisition procedure of these lands was legal and Government of Karnataka passed an order No.ITD42-MDA-2006(1) stating that the project will be of 1130 acres and 325 acres in Bandikodgehalli village, Jala Hobli, Bangalore North Taluk would be allotted to M/s.ITASCA Software Development Pvt. Limited of accused 10 No.3 on consent award basis. Accused No.3 - Srinivas is stated to have deposited various amounts from time to time towards the cost of acquisition of the land in all amounting to Rs.108 crores. He had submitted consent letters for 300 odd acres of land in accordance with the instructions issued by the Principal Secretary, Commerce and Industries Department.
12. The Deputy Superintendent of Police, Lokayukta, Bangalore registered suo-moto FIR in Crime No.57/2010 and after investigation Lokayukta police filed chare sheet and in the said charge sheet the then Minister for Large and Medium Industries and eight other have been charge sheeted for the offences punishable under Sections 7, 8, 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act and Sections 419, 420, 465, 468, 471 read with Section 120-B of IPC.
13. The gist of the allegation is that petitioner who is accused No.1 and his son - Katta Jagadeesh were involved in 11 real estate business in Bangalore and the said accused persons along with their family members and other relatives and associates had made efforts to take over the lands at Bandi Kodigehalli village, Jala Hobli, during the year 2004 and they had committed several irregularities along with their associates in getting possession of the land. During this period, accused no.1 - Katta Subramanya was a Minister in the cabinet of Karnataka and Srinivas - accused No.3 was a close associate of accused Nos.1 and 2. Accused No.3 had started a private limited Company under the name and style of M/s.ITASCA Software Development Pvt. Limited in the year 2006 and accused Nos.1 to 3 made this Company and accused No.3 made use of it as a platform for commission of various offence like forgery, fabrication of documents etc.,
14. During the year 2006, an application was filed by M/s.ITASCA Software Development Pvt. Limited for I.T. and I.T.E.S. and to form a Special Economic Zone (SEZ). Katta Jagadeesh - accused No.2 chose to file an application on 12 behalf of M/s.ITASCA Software Development Pvt. Limited and there were several glaring defects in the said application. In the light of officials noting their objections for declaring the land for SEZ, accused No.1, using his position as a Minister in the Government of Karnataka, over-ruled the said objections raised by the officials and got the said application placed before the High Power Committee. After obtaining approval from the Committee, at different stages, grabbing of lands was started by M/s.ITASCA Software Development Pvt. Limited by creating false documents and forgery was done by accused No.2 and 3.
15. An agreement was entered into in the month of November 2007 by K.I.A.D.B for grant of land and the amount was pumped by United Telecom Company U.T.L into M/s.ITASCA Software Development Pvt. Limited. After pumping of money into Itasca Company, the floater of Itasca Company accused No.3 -Srinivas colluded with accused No.1 and 2 started a benami Company under the name and style of 13 'Indu Builders and Developers'. A sum of Rs.87 crores was pumped into Indu Builders Developers and Itasca Company and UTL and thus accused Nos.1 and 2 created a root to ensure that the money flowed into the family business run by their family. The amount was transferred to a Petrol Bunk which was run by a member of the family of the accused Nos.1 and 2 from Indu Builders and Developers. Indu Builders and Developers were procuring forged signature of the land owners. Thus there had been illegal dealings in money for this purpose. The land grabbing was completed and illegal gratification was procured from Itasca Company and UTL. The illegal gratification was received by accused Nos.1 and 2 and accused No.3 and 7 had helped them in this regard.
16. The gist of the prosecution is that the accused Nos.1 and 2, right from the beginning, had made a plan to make unlawful gains and accused No.1 by misusing the office as public servant wanted transfer of the land, to K.I.A.D.B at 14 shooting price wherein the price was fixed at the instance of accused No.1 for enabling a platform to accused No.2. The father of accused No.3 is a practicing Advocate at Bangalore and he was the advocate for accused Nos.1 and 2 and was intimate with both of them. Being the Managing Director of Itasca Company, accused No.3 acquired large portion of land at Bandikodigehally after hatching conspiracy with a accused Nos.1 and 2 and others and the application filed by accused No.1 through accused No.2 was cleared. Clear allegation is made against accused No.1 for having cleared all the decks for placing the application of Itasca Company within 4 days of its receipt though it was expected to be kept for 21 days as per the rules. Accused Nos.1 to 3 knew that Itasca Company had no qualification for allotment of land and that they did not have financial viability. The allegation against accused No.3 is only creating false documents depicting as though its Company had financial viability. The allegation against accused No.2 was that he was doing business in real estate in 15 the name of his mother. The very accused No.2 - Katta Jagadeesh chose to file application to Udyoga Mithra on behalf of Itasca Company by buying a D.D. for Rs.3 lakh and presented as though it was purchased by 3rd defendant. Allegation against accused No.2 is that he received an amount of Rs.21,95,80,000/- by forging the signatures of land owners. In all he is stated to have cheated the land holders to an extent of Rs.37,23,29,000/-. Further allegation is that the land holders and owners had been threatened and coerced to give away their lands and cheques and to ensure that the said amount did not reach the land owners.
17. It is alleged that after the acquisition of 320 acres of land, Itasca Company transferred the shares to an extent of 99% of accused No.3 to Basavapoornaiah to get financial flow and accused Nos.1 and 2 shared the ill-gotten money. It is in this regard, sum of Rs.87 crores was transferred to M/s.Indu Builders and Developers and accused Nos.4 and 5 namely, Jaggaiah and Venkaiah who were workers in the Petrol Bunk 16 owned by Sowbhagya the wife of accused No.1 and mother of accused No.2. In this connection, a sum of Rs.47,07,68,000/- is stated to have been swindled by accused Nos.1 to 4 and thus deceiving the farmers and grabbing 100 acres of land from them. Accused No.4 - Jaggaiah and accused No.5 - Venkataiah and the Indu Builders had no financial back up or qualification nor expertise, were set up by accused Nos.1 and 2.
18. Accused No.6 - Basavapurnaiah, the Chairman of United Telecoms Ltd., pumped money to an extent of Rs.317 crores, out of which Rs.87 crores went to Indu Builders and balance of Rs.230 crores went to Itasca Company.
19. After perusing the records and charge sheet filed in Crime No.57/2010, it is seen that lands were acquired by payment of compensation to the land owners by KIADB for various projects, the officials of KIADB committed certain irregularities and illegalities. They started demanding bribe 17 amount from the land owners for payment of compensation amount and in this regard, one Rukmangada Naidu lodged information to Lokayukta police. On his information, crime No.24/2010 was registered against the officials of KIADB on 28.6.2010 for the offences punishable under Sections 7, 13(1)
(d) r/w 13(2) of P.C. Act, 1988. On conducting investigation, charge-sheet came to be filed on 27.9.2010 and was registered in Spl.C.C.No.306/2010 against one B.M. Nagabhushan who was working as FDA in the office of SLAO, KIADB, Bangalore and one N.R. Nagaraj, Special LAO, KIADB.
20. After sometime in respect of KIADB Land Acquisition scam, Cr.Nos.42/2010, 43/2010, 44/2010, 45/2010 and 46/2010 came to be registered on a source report filed by Lokayukta police. The offences alleged in these cases are punishable under sections 7, 13(1) (d) r/w 13(2) of P.C. Act, 1988 and Sections 465, 468, 471, 420 r/w 120-B IPC. These cases were filed against some of the officials of KIADB. Cr.No.42/2010 was investigated by H.S.Manjunatha, 18 Dy.S.P., Lokayukta, Cr.No.43/2010 by Smt. H.S. Radhamani, Dy.S.P., Lokayukta, Cr.No.46/2010 by Krishna Murthy, Police Inspector. When investigation in all crimes was going on, the Investigating Officer/complainant in Cr.No.42/2010, H.S. Manjunatha, Dy.S.P., Lokayukta was ordered by Lokayukta Superintendent of Police, by order dated 1.10.2010 to investigate the role of M/s. ITASCA Software Development Pvt. Limited company in regard to the acquisition of land in KIADB scam and register a separate crime. In this regard, accused No.3 in Cr.46/2010 was summoned on 5.10.2010 and on 6.10.2010 for investigation by Dy.S.P. A panchanama was drawn in the presence of few panchas and files pertaining to M/s. ITASCA Software Development Pvt. Limited produced by accused No.3 were seized and thereafter he was taken to his office and asked to give other files pertaining to M/s. ITASCA Software Development Pvt. Limited company for the purpose of investigation. He again issued another notice on 27.10.2010 19 under Section 160 Cr.P.C. relating to Cr.No.43/2010. Sri.K.C. Laxminarayana, Investigating Officer interrogated him and again he was issued with another notice under Section 91 Cr.P.C. in Cr.No.43/2010 to furnish information pertaining to M/s. ITASCA Software Development Pvt. Limited company. After perusing the records, the seized documents from Itasca Company and the information collected from Srinivas, the Investigating Officer obtained search warrant to search the premises of M/s. Indu Builders & Developers, Sowbhagya Petroleum Bunk, belonging to accused No.2- Katta Jagadish and office of M/s. ITASCA Software Development Pvt. Limited located and United Telecom Company building. These documents were seized from M/s. Indu Builders Developers and they were subjected to the Court in P.F.No.102/2010.
21. Several files of UTL were seized and the documents seized in Cr.No.42/2010 pertaining to Itasca Company were handed over to the Investigating Officer- Girish by Sri.H.S. Manjunatha, Investigating Officer in 20 Cr.No.42/2010. Then these documents were transferred from Cr.No.42/2010 under a panchanama to Cr.No.57/2010. Therefore investigation is held in Crime No.57/2010.
22. Of course certain documents seized in the connected Crime Nos.42/2010 to 46/2010 relating to grabbing of lands and cheating of land owners by forging documents were made part of Crime No.57/2010. Whereas it is held by the co-ordinate Bench in paragraph No.20 of the order while quashing the proceedings against accused No.3 is that registration of second FIR is permissible only if the offences disclosed in the second FIR are not part of the first FIR as held by the Supreme court in the case of ANJU CHAUDHARY -V- STATE OF UTTAR PRADESH AND ANOTHER - (2013) 6 SCC 384 . After perusing the FIR in Cr.Nos.42/2010, 43/2010, 46/2010 and 57/2010, compared the same with the contents of Cr.No.57/2010, the co-ordinate bench has held that the registration of Crime No.57/2010 is nothing but a repetition. Placing reliance on the decision of 21 the Hon'ble Apex Court in the case T.T. ANTONY -VS- STATE OF KERALA & OTHERS - (2001) 6 SCC 181, the co-ordinate Bench of this Court has held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. Whereas, it is further held in the said case that only information about commission of a cognizable offence which is first entered in station house diary by officer in charge of the police station can be regarded as FIR in terms of Section 154 of Cr.P.C. and that all such subsequent informations will be hit by S.162 of Cr.P.C.. There is no second opinion about this proposition of law laid down by the Hon'ble Apex Court.
23. Co-ordinate bench of this Court, while dealing with accused No.3, has relied upon a decision of the Hon'ble Apex Court in the case of AMITBHAI ANILCHANDRA SHAH -VS- CBI & OTHERS - (2013) 6 SCC 348. Head note 'F' is referred to in 22 paragraph No.23. In paragraph 24 of the said decision the co-ordinate Bench of this Court has held that the registration of FIR in Cr.No.57/2010 is nothing but the second FIR or multiple FIR and it is nothing but abuse of power. Therefore powers vested by this Court under Section 482 of Cr.P.C. is exercised and case against accused No.3 is quashed.
24. The final order passed by the co-ordinate Bench of this Court in paragraph No.26 and the same is as follows:
"26. Accordingly, petition is allowed. The FIR registered in Cr.No.57/2010 of Lokayukta police station, Bangalore City and the charge-sheet filed in pursuance of Cr.No.57/2010 for the offences punishable under Sections 7, 8, 13(1) (d) r/w 13(2) of P.C. Act and Sections 465, 468, 471, 420 r/w 120-B IPC in Spl.C.C.No.135/2011 on the file of XXIII Addl. City Civil and Sessions Judge and Special Judge under Prevention of Corruption Act, 1988 in so far as it relates to the petitioner-Sri. S.V. Srinivas(accused No.3) are hereby quashed"23
25. Whereas it is held in paragraph No.24 of the order dated 10.03.2016 is that Cr.No.57/2010 came to be registered on 1.12.2010 by transferring the material which were seized in other crimes and registration of FIR in Cr.No.57/2010 is bad in law.
26. Reference is made about the facts involved in the said case. Whereas it is held that the amount to be paid to the land owners was deposited by United Telecom Limited and the said land was acquired by SLAO, KIADB - a Government agency. It is further held that it is not the case of the Lokayukta that the amount required for payment of compensation was not deposited by M/s. ITASCA Software Development Pvt. Limited, UTL and M/s. Itasca did not gain anything. For better clarification of the facts of the case, the contents of paragraph 25 of the final order dated 10.03.2016 is extracted below:-
25. Regarding the merits, as admitted, no Government money was involved for acquisition of 24 land. The application of M/s. ITASCA Software Development Pvt. Limited was placed before the State High Level Clearance Committee by Karnataka Udyog Mitra headed by Chief Minister in the meeting of the committee and the application was approved. M/s. ITASCA Software Development Pvt. Limited was permitted to start Special Economic Zone in an area of 325 acres of land in Bandi kodigehalli village. The amount to be paid to the land owners was deposited by United Telecom Limited. The land was to be acquired by SLAO, KIADB - a Government agency. It is not the case of the Lokayukta that the amount required for payment of compensation was not deposited by M/s. ITASCA Software Development Pvt. Limited and UTL. M/s. Itasca did not gain anything. The amount for payment of exgratia to the land owners was deposited by M/s. ITASCA Software Development Pvt. Limited into account of M/s. Indu Builders and Developers, which was entrusted with the work of negotiating with the land owners and to obtain the consent letters from the owners to pass the consent award. The case of the Lokayukta is that the amount deposited with M/s. Indu Builders 25 and Developers to make exgratia payment has been misused by accused Nos.1 and 2, since M/s.
Indu Builders and Developers is a benami company of accused Nos.1 and 2. Accused Nos.1 and 2 said to have received bribe to approve the application submitted by M/s. ITASCA Software Development Pvt. Limited. Nobody questioned the integrity of the petitioner for all these days. The consent award was passed through KIADB a Government agency. Not a single complaint cropped up with regard to acquisition of land and payment of compensation. For all these reasons, the continuation of proceedings against the petitioner is nothing but abuse of power and abuse of process of Court. As such, proceedings as against the petitioner are liable to be quashed.
27. What is argued by SriK.G.Raghavan, learned senior counsel has argued that even if the order passed by the co- ordinate Bench is bad and anybody aggrieved by the said order has to approach Hon'ble Apex Court. So it is submitted by Sri.K.G.Raghavan with all force that the order passed by the co-ordinate Bench of this Court cannot be 26 questioned in a collateral proceedings pending before this Court. He has relied upon the concept of parity to be made applicable to the present case.
28. Sri.Venkatesh P.Dalwai, learned counsel representing Lokayutha has relied upon a decision of the Hon'ble Apex Court in the case of STATE OF HARAYANA AND OTHERS vs. RAM KUMAR MANN to contend that if an order or decision of a co-ordinate Bench ignores, an apt decision of the Apex Court, parity cannot be pressed into service and it does not bind the Court and it cannot be the foundation for claiming equality for enforcement of the same in another order. He has argued that it would be violative of Article 14 of Constitution of India. There is a lot of force in the said submission of the learned counsel.
29. Reliance is placed by Mr.Dalwai upon a decision of the Hon'ble Apex Court in the case of FULJIT KAUR v. STATE OF PUNJAB AND OTHERS - (2010) 11 SCC 455 to 27 contend that concept of equality never accepts negative equality and it is a positive concept only. It is argued that equality cannot be claimed in illegality and therefore cannot be enforced by a citizen or Court in a negative manner. In this case, Hon'ble Apex court has reiterated that a wrong order / decision in favour of particular party does not entitle any other party to claim the benefits on the basis of the wrong decision. The Hon'ble Apex Court has gone to the extent of stating that Article 14 cannot be stretched too far otherwise it would make function of the administration impossible.
30. What is submitted by Sri.Venkatesh P.Dalwai, learned counsel representing Lokayukta is that the learned Judge was expected to follow ultimate law laid down by the Hon'ble Apex Court in paragraph No.60. It is submitted that even if FIR registered in Cr.No.57/2010 and consequently charge sheet were to be rejected, there should have been an order treating the investigation conducted in Cr.No.57/2010 28 as part of the earlier crime numbers. Based on the law laid down in paragraph 60 of the said decision, there is lot of force in the said submission of Sri.Venkastesh P.Dalwai, learned counsel.
31. The co-ordinate Bench of this Court has relied upon the observation made in paragraph 59 of Page 383 in Amitbhai's case in regard to the registration of second FIR or multiple FIR. If ultimately subsequent investigation conducted in the latest FIR is found to be part and parcel of the earlier FIR, the investigation conducted in the subsequent cannot be quashed. There is a lot of force in the said submission of Sri.Venkatesh P.Dalwai, learned counsel and it needs to be recognized as per the law laid down in paragraph 60 of the said decision. Therefore, for clarification both paragraph Nos.59 and 60 of Amitbhai's case is relied upon and the same is extracted below:-
"59. In the light of the specific stand taken by CBI before this Court in the earlier proceedings by way 29 of assertion in the form of counter-affidavit, status reports, etc, we are of the view that filing of the second FIR and fresh charge-sheet is violative of fundamental rights under Articles 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the Court has taken cognizance. This Court categorically accepted CBI's plead that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and in spite of the fact that this Court directed CBI to "take over" the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment.
60. In view of the above discussion and conclusion, the second FIR dated 29.4.2011 being RC No.3(S)/2011/Mumbai filed by CBI is contrary to the directions issued in judgment and order dated 8.4.2011 by this Court in Narmada Bai v. State of Gujarat and accordingly the same is 30 quashed. As a consequence, the charge-sheet filed on 4.9.2012, in pursuance of the second FIR, be treated as a supplementary charge-sheet in the first FIR. It is made clear that we have not gone into the merits of the claim of both the parties and it is for the trial court to decide the same in accordance with law. Consequently, Writ Petition (Crl) No.149 of 2012 is allowed. Since the said relief is applicable to all the persons arrayed as accused in the second FIR, no further direction is required in Writ Petition (Crl) No.5 of 2013."
32. On the other hand Mr.Dalwai has submitted that reference is also made to the facts of the case. He has submitted that nothing is forthcoming as to whether the registration of FIR in Cr.No.57/2010 and consequent quashing of charge sheet is based on the legal ground or on the factual ground. In this regard also, there is lot of force in the submission made by Sri.Venkatesh P.Dalwai. In paragraph 25 of the order passed by the co-ordinate Bench 31 of this Court, facts are also discussed to quash the proceedings.
33. Parity is different from precedent. As rightly pointed out by Sri.Venkatesh P.Dalwai, in order to apply parity, the impugned order must not have been proceeded on a wrong notion. Allegation is that accused No.3 submitted a forged network certificate to indicate that he had sufficient funds and business at his disposal, so as to make an application to 'Udyogamithra' a unit which was under the Ministry of Industries of which accused No.1 was the Minister at that relevant point of time. The network certificate was referred to FSL and statement of witnesses who had supposedly signed the network certificate is recorded and witnesses disputes the very signature.
34. This Court is expected to look into about the applicability of the said order to the facts of the present case. As held in the case of FULJIT KAUR v. STATE OF 32 PUNJAB AND OTHERS - (2010) 11 SCC 455, Article 14 of the Constitution of India cannot be stretched too far otherwise it would make function of the administration impossible. Even if some other placed situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. Principles to this effect is explained by the Hon'ble Apex Court in the case of CHANDIGARH ADMN v. JAGJIT SINGH - (1995) 1 SCC 745, SNEH PRABHA v. STATE OF U.P - (1996) 7 SCC 426 and STATE OF BIHAR v. KAMESHWAR PRASAD SINGH - (2000) 9 SCC 94.
35. In the present case, the co-ordinate Bench of this Court has essentially held that the registration of Cr.No.57/2010 is nothing but a second FIR. While recording the statement of Srinivas who was cited as witness in the earlier crime number, many startling informations who were disclosed about the acquisition of 33 land by KIADB by means of consent awards and handing over those property to Itasca Company. In the light of serious allegation being made in regard to hatching of conspiracy by all the other accused and in the light of pumping of money by Indu Builders and Developers to accused No.3 and in the light of involvement of many officials of KIADB and in the light of persons having no sufficient financial capacity pumping money to the 3rd accused, parity cannot be made applicable in the present case.
36. On the other hand, this case is already admitted and impugned order rejecting the application filed under Section 227 of Cr.P.C. needs to be examined. In fact, the learned Judge of the trial Court has passed detail and lengthy order adverting to the statement of various witnesses and the documents filed along with charge sheet. 34
37. In this view of the matter, memo is liable to be rejected. Accordingly, memo filed on behalf of the petitioner is rejected.
Post this case for final hearing on 30.06.2016.
Sd/-
JUDGE VMB