Calcutta High Court (Appellete Side)
Sk. Najmul Arfin @ Sheikh Arfin @ Arfin ... vs The State Of West Bengal on 16 August, 2013
Author: Tapen Sen
Bench: Tapen Sen
HIGH COURT AT CALCUTTA
IN THE APPELLATE SIDE JURISDICTION
CRA 780 of 2013
With
CRR 100 of 2013
With
CRA 580 of 2011
With
CRM 9995 of 2011
With
CRAN 346 of 2012
Sk. Najmul Arfin @ Sheikh Arfin @ Arfin Sheikh @ Arfin Najmul
-Vs-
The State of West Bengal
CORAM: HON'BLE MR. JUSTICE TAPEN SEN
HON'BLE MR. JUSTICE MRINAL KANTI SINHA
For the Petitioner : Mr. S.K. Kapoor
Mr. Amalesh Roy
in CRR 780 of 2013
Mr. Tanay Chakraborty
Ms. Mousumi Bhowal
Mr. Deborshi Dhar
For the Petitioner : Mr. Animesh Goswami
in CRR 100 of 2013 Ms. Joyita Ray
For the Appellant / State : Mr. Sekhar Kumar Basu
in CRA 580 of 2011 Mr. Manjit Singh, Ld. P.P
Mr. Rajdeep Majumder
Mrs. Kakali Chatterjee
C.A.V on : 29.07.2013
Judgment Delivered on : 16.08.2013
JUDGMENT
Tapen Sen J.- While CRR 780 of 2013 has been filed by one Sk. Najmul Arfin alias Sheikh Arfin alias Arfin Sheikh alias Arfin Najmul, CRR 100 of 2013, on the other hand, has been filed by one Shri Chandi Puila. In CRR 780 of 2013, the petitioner has prayed for quashing of the entire criminal proceedings being Anandapur P.S Case No. 36 of 2011 dated 6.6.2011 u/s 147/148/149/448/326/307/302/ 506/ 201 & 120B read with Sections 25 and 27 of the Arms Act and which led to Sessions Trial No. XIX of January 2012 and which is pending before the learned 4th Additional Sessions Judge, Paschim Mednipore. The petitioner has further prayed for quashing the charge sheet submitted in relation to that case as well as the Order dated 19.2.2013 passed by the said learned 4th Additional Sessions Judge.
2. In CRR 100 of 2013, the petitioner Chandi Puila has also prayed for similar relief of quashing the said criminal proceedings and both the petitioners have prayed for interim stay of the said Sessions Trial Case No. XIX of January 2012.
3. Before we proceed to deal with this matter, we would like to reiterate our Order dated 24.7.2013 which would indicate as to why this Bench had to hear this matter notwithstanding the fact that we have Roster relating to Criminal Appeals. The said Order would indicate that by an administrative decision taken on 25.3.2013, Hon'ble the Chief Justice directed that this matter to be placed along with CRM 9995 of 2011 before the regular Division Bench.
4. CRM 9995 is an Application under Section 5 of the Limitation Act praying for Condonation of Delay of 528 days in filing an Application for Special Leave to Appeal against the judgment and Order dated 21.5.2010 by which the learned 6th Additional Sessions Judge, Paschim Mednipore acquitted the accused persons including these two petitioners in these two Petitions by its judgment dated 21.5.2010 in Sessions Trial No. V/October/2005 (G.R case no. 1370 of 2002).
5. Our Order dated 24.7.2013 referred to above, reads as follows -
"CRR 780 of 2013 With CRR 100 of 2013 With CRA 580 of 2011 With CRM 9995 of 2011 With CRAN 346 of 2012 In Re: Sk. Najmul Afrin @ Sheikh Arfin @ Arfin Sheikh @ Arfin Najmul ........Petitioner.
Mr. S.K. Kapoor, Mr. Amales Roy, Mr. Tanay Chakraborty, Ms. Mousumi Bhowal, Mr. Deborshi Dhar ...For the Petitioner in CRR 780 of 2013.
Mr. Asimesh Goswami, Ms. Joyita Ray ....For the Petitioner in CRR 100 of 2013. Mr. Sekhar Kumar Basu, Mr. Rajdeep Majumder ....For the Appellant in in CRA 580 of 2011 Mr. Prasun Dutta, Mrs. Kakali Chatterjee .....For the State.
Although we had reservations in taking up this matter since our determination does not pertain to criminal revisions, but looking into the Order dated 13.03.2013 which was a judicial Order of Hon'ble Mr. Justice Kanwaljit Singh Ahluwalia (then Hon'ble Judge of this Court), we find that by the said Order his Lordship had released the matter for being placed before the Division Bench. Subsequently, by administrative decision taken on 25.03.2013, Hon'ble the Chief Justice observed as follows :-
"Let this matter be heard along with CRM No.9995 of 2011 by the regular Division Bench".
The Hon'ble Chief Justice is the master of the roster and therefore, though we do not have determination, we have to hear this matter.
We have heard the parties at great length. Learned Counsel submits that some more arguments are necessary. We will take up this matter for further hearing tomorrow (25.07.2013) at 2 P.M. Heard-in-part.
During the course of submissions it was revealed that the State has filed an Appeal against the order of acquittal passed in the earlier case accompanied by an Application for Condonation of Delay vide CRM 9995 of 2011 which has been referred to by the Hon'ble Chief Justice. That Appeal should also be listed along with these cases.
( Tapen Sen, J. ) ( Mrinal Kanti Sinha, J.) "
6. Having thus clarified the position in the manner stated above, we would now proceed to deal with the facts of this case as has been narrated by the petitioners.
The petitioner Sk. Najmul Arfin alias Sheikh Arfin alias Arfin Sheikh alias Arfin Najmul (hereinafter referred to as Najmul) is an accused and was arrested in connection with the impugned Anandapur P.S Case No. 36 of 2011 dated 6.6.2011 u/s 147/148/149/448/326/307/302/ 506/ 201 & 120B read with Sections 25 and 27 of the Arms Act. He was enlarged on bail subsequently. The said criminal case led to Sessions Trial No. XIX of January 2012.
The petitioner Chandi Puila, on the other hand, was an accused in Keshpur P.S Case No. 61 of 2002 dated 26.9.2002 u/s 148/149/448/307/323/364 & 506 of the Indian Penal Code read with Sections 25 & 26 of the Arms Act. Subsequently, he, along with 5 other persons were charge sheeted and committed to the Court of the Sessions, Paschim Mednipore. This case led to Sessions Trial No. STV/October/2005. The learned Additional Sessions Judge 6th Court, Paschim Mednipore, after taking evidence of 15 witnesses and hearing both sides, acquitted him and all others by his judgment dated 21.5.2010.
7. It is stated that on the self same incidents a series of other criminal cases had been initiated in the manner stated in paragraphs 2.2 onwards of the petition being CRR 780 of 2013. Those cases are as follows -
(a) Keshpur P.S Case No. 58 of 2002 dated 22.9.2012 u/s 148/149/323/324/325/326 & 307 of the Indian Penal Code read with Sections 25/26 & 37 of the Arms Act + Section 9(B) of the Indian Explosives Act. That case was instituted on the basis of a complaint lodged by one Vivekananda Ghosh (Annexure 'A').
(b) Keshpur P.S Case No. 59 of 2002 dated 22.9.2002 u/s 148/149/307 and 302 of the Indian Penal Code read with Sections 25/27 & 35 of the Arms Act + Section 9(B) of the Indian Explosives Act. That case was instituted on the basis of the complaint lodged by one Nemai Chandra Sarkar (Annexure 'B').
(c) Keshpur P.S Case No. 60 of 2002 dated 22.9.2002 u/s 143/307 & 186 of the Indian Penal Code with Sections 25/27 & 35 of the Arms Act + 9B of the Indian Explosives Act. That case was instituted on the basis of the complaint lodged by one Debasish Roy, the then Officer-In-Charge of the Keshpur Police Station (Annexure 'C').
(d) Keshpur P.S Case No. 61 of 2002 dated 26.9.2002 u/s 148/149/448/326/307/364 & 506 of the Indian Penal Code read with Sections 25 & 26 of the Arms Act. That case was instituted on the basis of the complaint lodged by one Smt. Chandana Acharya, D/o Ajoy Acharya (Annexure 'D').
8. It is stated that after completion of investigation, the police submitted a charge sheet being Charge sheet No. 76 of 2004 dated 8.11.2004 against various persons being Sk. Moinuddin, Manas Pan, Sk. Mokhtar Ali, Sudip Pora, Bidhan Sani, Kedarnath Samui, Biswanath Panja, Sambhu Biswas, Habibur Rahman, Arup Ghosh, Goutam Acharya and Ram Sani u/s 148/149/323/324/325/326 & 307 of the Indian Penal Code read with Sections 25/27 & 35 of the Arms Act + Section 9(B) of the Indian Explosives Act.
9. So far as Keshpur P.S Case No. 61 of 2002 is concerned and which was initiated on the basis of the complaint of by Smt. Chandana Acharya, the police filed Charge sheet No. 9 of 2005 on 9th February, 2005 u/s 148/149/448/364 & 506 of the Indian Penal Code vide Annexure 'H'.
10. The petitioner Najmul and other accused persons faced trial before the learned 4th Additional Sessions Judge, Fast Track, Paschim Mednipore in ST No. V/October/2005. In relation to the other Police Station cases mentioned above, the accused persons also faced trial in the following manner ---
(a) Keshpur P.S Case No. Sessions Trial No. 25/1-06 Before the learned 4th 59 of 2002 - Additional Sessions Judge, Fast Track, Paschim Mednipore.
(b) Keshpur P.S Case No. Sessions Trial No. 25/1-06 Before the learned 4th 59 of 2002 Additional Sessions Judge, Fast Track, Paschim Mednipore.
(c) Keshpur P.S Case No. Sessions Trial No. 25/1-06 Before the learned 4th 59 of 2002 Additional Sessions Judge, Fast Track, Paschim Mednipore
11. It is stated that the Sessions Trial No. 25/1-06 ultimately culminated in a judgment dated 29.05.2008 by which the accused persons were Acquitted from the Charges.
12. So far as STV/October/2005 arising out of Keshpur P.S Case No. 61 of 2002 is concerned, the learned 6th Additional Sessions Judge, Paschim Mednipore also delivered the judgment on 21.5.2010 holding that Sheikh Najmul Arfin, Chandi Puila and other accused persons were not guilty of the charges u/s 148/149/364 & 448 of the Indian Penal Code and accordingly acquitted them from the said Charges.
13. It is stated that in May, 2011 there was a political change in the State of West Bengal and thereafter on 5.6.2011 one Shyamal Acharya, S/o late Ajoy Acharya and brother of Chandana Acharya belonging to the Trinamool Congress Party, made a written report before the Officer-In-Charge, Anandapur Police Station which was registered as Anandapur P.S. Case No. 36 of 2011 dated 6.6.2011 u/s 147/148/149/448/326/307/302/506/201/120B of the Indian Penal Code read with Sections 25 and 27 of the Arms Act. It is further stated that the entire allegations in this F.I.R which was lodged on 5th June, 2011 was in relation to the self same incidents which had taken place on 22.9.2002 in which all the aforementioned Police Station cases had been instituted, tried and accused persons acquitted. It is further stated that this F.I.R was initiated against the petitioner and 39 other accused persons on those very self same allegations which were made by Smt. Chandana Acharya in Keshpur P.S Case No. 61 of 2002 and who is the daughter of Ajoy Acharya, the victim. The translated version of the present F.I.R being Anandapur P.S Case No. 36 of 2011 has been given in paragraph 7.2 of the petition being CRR 780 of 2013 and which reads as follows ---
"My name is Shyamal Acharya son of late Ajoy Acharya. I am the resident of village Raniorh Post-Sirsa, P.S. Keshpur at presently (Anandapur) District - Paschim Medinipur on 22.9.2002 at about 9 a.m. my father along with some T.M.C supporters came to our native house from Medinipur. Due to the torture of CPI(M) my father was forced to leave his home. On 22.9.2002 my father and some T.M.C supporters came our home. Like Ram Sani, son of Gagan Sani, Arup Ghosh, Dil Mohammad, Raju Singh, Sk. Alaudding, Sk. Taju and many others. At that time the miscreants whose names are mentioned below who belonged to CPI(M) armed with rifle, guns, pistols, bomb, tangi and other sharp weapons entered our house and started beating my father and his companions with sharp weapons the CPM miscreants chased them up to Piasala village and there in the farm yard of Gobinda Majhi they killed my father and his companions with sharp weapons and guns. The victims were 7 in number. On informing about the entire incident at Keshpur P.S the then Officer refused to take the complaint. Furthermore he abused us. After few days the aforesaid incident was informed in writing to the Medinipur S.P.. Keshpur P.S received the written complaint on 26.9.2002 through the S.P. till date there is no information as to the whereabouts of my father. During the Bidhan Sabha Election 2011 the CPM Harmads went to our home and threatened my family and said "if you do Trinamool you will also be killed like your father".
Yesterday i.e. on 04.06.2011 in the afternoon I came to learn from the people that police have recovered some human skeletons by digging earth on Daser Bandh, Keshpur. I went there and saw all the skeletons and I could identify the skeleton of my father. Seeing his Dhoti, Genji and undergarment and set of teeth I became sure that the said skeleton was of my father Ajoy Acharya.
Hence, sir, the aforesaid incident was pre-planned by the following accused persons who are responsible for my father's death. Hence I request you to investigate into the entire incident by CBI and by conducting DNA test and justice be done by inflicting exemplary punishment to the accused for such heinous act.
Dated - 05.06.2011 Yours,
Sd/- Shamal Acharya."
14. It is the case of the petitioners in both the cases that the aforesaid case has been registered out of sheer political vendetta and that would be evident from the fact that this has been done so after "change of guards" in the State of West Bengal and also, after delay of 9 years from 22.9.2002 (the date of the incident). The petitioners have stated that if Keshpur P.S Case Nos. 58, 59, 60 & 61 of 2002 are compared with the instant Anandapur P.S Case No. 36 of 2011, it would appear that the latter is based on the very self same set of facts and therefore the impugned prosecution is hit by the doctrine of autrefois acquit which is based on the principles enshrined under Section 300 of the Code of Criminal Procedure, 1973. According to the Petitioners therefore, they cannot be subjected to another trial for the same set of offences / same set of facts when they have already been tried by a Court of competent criminal jurisdiction and acquitted.
15. Accordingly, on 19th February, 2012, the petitioner Najmul filed an application before the learned 4th Additional Sessions Judge, Paschim Mednipore for Discharge under Section 227 of the Code of Criminal Procedure. and by an Order dated 19.2.2013 the said learned Court held that there was no impediment if the said Application was taken up at the time of hearing on the question of Charge. According to the petitioners, the learned Court below ought to have first decided the question relating to the petition filed for Discharge in view of Sections 227 and 228 of the said Code of Criminal Procedure, 1973.
16. In the background of the aforementioned set of facts, Chandi Puila, who was also acquitted from the charges arising out of Keshpur P.S Case No, 50 of 2002 dated 22.9.2002 vide ST No. 25/1-06 and Keshpur P.S Case No. 61 of 2002 vide ST No. V/October/05 has filed the other application being CRR 100 of 2013 for quashing the entire criminal proceedings arising out of the said Anandapur P.S Case No. 36 of 2011 dated 6.6.2011.
17. Now, so far as Keshpur P.S Case No. 61 of 2002 dated 29.06.2002 is concerned and which was lodged by one Chandana Acharya, the allegations have been included in this case vide Annexure 'D' and the relevant portion thereof reads as follows --
"To The Officer-in-Charge Keshpur P.S. District - Paschim Medinipur Sir, I humbly submit that on 22.9.2002 at about 10 a.m. my father Ajoy Acharya son of late Satish Acharya, resident of village - Raniorh, P.S. Keshpur along with some TMC workers came to our house and said that according to the resolution of peace meeting everyone was free to practice or pursue politics to their own choice. And sometime thereafter the following miscreants armed with rifle, guns, tangi and other sharp weapons came running to our house. 5/6 persons including my father tried to hide inside the house but the miscreants Sona Das, Manas Mitra, Bangshi Mondal, Bablu Mitra, Jhalu Mondal, Arun dragged out my father from the house and started to beat them. I fell on their feet and begged them to spare my father but they said "we shall make these buggers leave TMC forever" and they shot the TMC workers including my father. My father was begging for a glass of water when we ran towards him the following miscreants forced us to go inside our room and dragged the victims towards Piasala. Since then we do not have any whereabouts of my father.
Hence I request you to take legal steps against the following miscreants and rescue my father. For being busy in searching my father there has been delay in filling the complaint.
Humbly Chandana Acharya Names and address of the miscreants (1) Sona Das son of Anil Das of Patu (2) Manas Mitra (Bachhu) son of Late Haru Mitra of Amanpur, (3) Bablu Mitra son of Late Hari Mitra of Amanpur (4) Banshi Mondal son of Late Mahendra Mondal of Rajagra (5) Kalu Mondal son of Gati of Eluni (6) Arun Mondal son of Late Kalipada Mondal of Eluni (7) Biman Ghosh of Piasata (8) Kashem of Mugbasan (9) Debasis Pain of Ramgarh (10) Subhashis Pain son of Late Panchu (11) Kalipada Chowdhury of Khetha (12) Chaudi Panita of Kheta (13) Kailash Nayek of Mahir (14) Ariful Islam of Chuchura (15) Sk. Arfum of Siadar (16) Sk. Abas of Salsaboni (17) Sunil Mallick son of Sudhir (18) Gunadhar Rana son of Ratan of Solidiha (19) Sk. Niamat Ali and many others at P.S. Keshpur. Dist - Paschim Mednipur. "
(SIC) (Emphasis by underlining is by this Court)
18. Upon the perusal of the aforesaid earlier F.I.R which was lodged by Chandana, the allegations are that on 22.9.2002 at about 10 A.M., her father along with some T.M.C workers had come to their house. As per the Resolution of a peace meeting, everyone was free to practice or pursue politics of their own choice. However, suddenly the miscreants named at the bottom of the written report being 19 in number (the names of Chandi Puila and Sheikh Arfin were included at Sl. Nos. 12 and 15 thereof) armed with rifles, guns, tangi and other sharp cutting weapons, came rushed into their house and five/six persons including her father tried to hide but the miscreants Sona Das, Manas Mitra, Bangshi Mondal, Babla Mitra, Jhalu Mondal and Arun dragged him out and started beating him. Chandana fell at their feet and begged for mercy but they replied saying that "we shall make these buggers leave TMC forever". Further allegation was that they then shot the TMC workers including her father who was begging for a glass of water when Chandana ran towards him. But the miscreants forced them to go back to their room and dragged the victims towards Piasala. Chandana alleged that thereafter, she did not know the whereabouts of her father.
19. Now in the present F.I.R which has been lodged in 2011 by Shyamal Acharya and which has led to the filing of Anandapur P.S Case No. 36 of 2011, the allegations are that on 22.9.2002 at about 9 A.M., his father along with some TMC workers came to their native house from Medinipore. It was alleged that owing to the torture of CPI(M), his father had been forced to leave his home but on 22.9.2002 he came back with TMC supporters. It was at that time that persons like Ram Sani, Arup Ghosh, Dil Mohammad, Raju Singh, Sk. Alaudding, Sk. Taju and many others belonging to the CPI(M) cadre forcibly entered their house armed with rifle, gun, pistol, bomb, tangi and other sharp weapons. They started beating up his father and his friends with sharp weapons. The CPI(M) miscreants chased them up to the Piasala village and there in the farmyard of Gobinda Majhi, they killed his father and his companions with sharp weapons and guns. The victims were 7 in number. The Keshpur Police Station refused to take the complaint, abusing them but, after a few days, the incident was informed in writing to the Mednipore S.P whereafter they received the written complaint on 26.9.2002. It was further alleged that till date however, there was no information as to the whereabouts of his father and in fact, during the Bidhan Sabha Elections of 2011, the members of the CPI(M) cadre had come to their home threatening them that "if you do TMC you will also be killed like your father". (SIC).
20. The written report further goes on to state that "yesterday", i.e. on 4.6.2011, he learnt from the people that the Police had recovered some human skeletons by digging up the earth on 'Daser Bandh' at Keshpur. Shyamal went to the place and saw the skeletons and he could identify the skeleton of his father by seeing his "dhoti", "genji", undergarments and a set of teeth which led him to say that he was sure that the said skeleton was that of his father, Ajoy Acharya. He therefore alleged that the incident was pre-planned and that the accused persons were responsible for his father's death. He, therefore, requested that the matter be investigated by the C.B.I and a DNA test be conducted and exemplary punishment be inflicted upon the accused persons for such an offence.
21. From the facts narrated above it is thus evident that the incident of 22.9.2002 happened in the house of Ajoy Acharya where members of a particular political party were alleged to have entered into the house of Ajoy Acharya and who belonged to a rival political party. It is further evident that the incident of 2002 was witnessed by Chandana Acharya who even alleged that her father had been shot. However, what is distinct in this case is that on 4.6.2011 the Police recovered some human skeletons and when Shyamal saw on eof them he was able to identify it as being the skeleton of his father. This new incident of the skeletons being dug out cannot be considered in isolation. It has to be considered in conjunction with the earlier case because it was in that case that there was an allegation of the father of Shyamal being assaulted and was shot at. This, therefore, changes the tone, texture and the entire character of the Case.
22. In the earlier case, the matter had ended with the dragging of Chandana's father towards Piasala village and nothing beyond that. So far as the instant case is concerned, and which has been lodged by Shyamal Achrya, the allegations are that his father and his companions were beaten up and chased by the CPI(M) miscreants towards Piasala village where, in the farmyard of Gobinda Majhi, they killed his father and his companions with sharp weapons and guns. This, according to us, is the distinguishing feature in so far as the instant F.I.R is concerned and it distinguishes the same from the earlier F.I.R. The provisions of Section 300 of the Cr.P.C, 1973 will apply only in a case where the offence remains the same and is based on the same set of facts. Since the instant F.I.R is clearly distinguishable because of the specific nature of allegations being made with regard to the killing of Ajoy Acharya, the said provision cannot be resorted to by the petitioners to claim the benefit of Section 300 of the Cr.P.C. Moreover the provisions of holding a trial is in public interest and therefore, such a trial cannot be frustrated due to technicalities and the Trial Court should not be restrained from assessing evidence. The discovery of skeletons and the identification made by Shyamal Acharya creates strong preponderance of probabilities.
23. Moreover, the petitioners have the liberty to ventilate their grievances at the time of hearing on the point of framing of Charges and therefore, the extra- ordinary powers under Section 482 of the Code of Criminal Procedure, 1973 should not be invoked at this stage. In a judgment of the Hon'ble Supreme Court passed in the case of Amit Kapoor vs Ramesh Chander & Anr. Reported in (2012) 9 SCC 460 & 462 it has been held that due care and caution is to be exercised while invoking the powers both under Section 397 as well as under
Section 482 of the Code of Criminal Procedure, 1973. Their Lordships, in the aforementioned judgment have culled out some principles to be considered while exercising jurisdiction in matters pertaining to quashing, either in the exercise of jurisdiction under Section 397 or Section 482 or together, as the case may be. Their Lordships have stated that the High Court should not unduly interfere and, at the very threshold, the High Court should be loath to throttle the prosecution in exercise of its inherent powers.
24. From the conspectus of the series of events and / or the facts leading to the initiation of the instant case, we must notice, as we are constrained to do, that in both the F.I.Rs the factum relating to shooting of the TMC workers including the father of Chandana was very specifically stated. In the 1st F.I.R., the language, at the risk of repetition, is :-
"Arun dragged out my father from the house and started to beat them. I fell on their feet and begged them to spare my father but they said "we shall make these buggers leave TMC forever" and they shot the TMC workers including my father."
25. Thus the fact relating to shooting of the father of Chandana was included in the 1st F.I.R. but what distinguishes the latter case from the earlier one is the discovery of skeletons leading to identification. Under such circumstances, this Court is inclined to accept the submissions of the learned Counsel for the State to the effect that a 2nd Trial cannot be prevented. Section 300 of the Code of Criminal Procedure clearly lays down that a person once convicted or acquitted shall not be tried for the same offence. However, a distinction has been made that a person acquitted or convicted may afterwards be tried for any distinct offence for which a separate charge might have been made. In the instant case, the scenario of the incident changed with the subsequent discovery of Section 300, Cr.P.C. cannot be stretched to apply to the latter case. Consequently, the principle that no person shall be prosecuted and punished for the same offence more than once, will not apply in this case.
26. Moreover, the discovery of bones coupled with the fact that Shyamal was able to identify as being that of his father, would definitely change the nature of the case to a preponderance of a probability that he may have been killed in the incident that occurred on 22.9.2002. Therefore, there is no bar for the initiation of a fresh case, which has rightly been done and in which investigations will be held, Trial conducted and ultimately, the guilty would be punished.
27. Therefore, the discovery of skeletons would give rise to a fresh cause of action justifying the 2nd F.I.R.
28. The judgment of the Hon'ble Supreme Court passed in the case of Babubhai vs State of Gujarat and Ors. and other analogous cases reported in (2010) 12 SCC 254 becomes necessary to be looked into. Their Lordships have held that in case of a subsequent F.I.R, the Court has to examine the facts and circumstances giving rise to both the F.I.Rs and the test of sameness is to be applied to find out whether both the F.I.Rs relate to the same incident in respect of the same occurrence or are in regard to incidents which have two or more parts of the same transaction. Their Lordships had held that if the answer is in the affirmative then the 2nd F.I.R is liable to be quashed. In the instant case we are firmly of the view that so far as the 2nd F.I.R is concerned, it relates to the discovery of skeletons at a different site and therefore it cannot be said to be two or more parts of the same transaction and therefore, in the opinion of this Court, the 2nd F.I.R is liable to be quashed.
29. Consequently the argument of Mr. Sekhar Basu to the effect that in the earlier case there was only one place of occurrence but in the present case there are other places of occurrence and therefore the 2nd F.I.R is distinct, must be accepted and even it has been lodged after a lapse of nine years because the skeletons themselves were dug out after such a long period of time giving rise to a fresh cause of action.
30. We are, therefore, of the view that these applications must be Dismissed and as a result the Criminal case instituted against the Petitioners cannot be Quashed. We therefore Dismiss these applications. However, there shall be no Order as to Costs. All observations made in this Judgment shall be deemed to govern the facts and circumstances of these two Criminal Revisions / Quashing Applications and would not construe to be observations on the merits of the Case before the Trial Court.
31. So far as CRM 9995 of 2011 is concerned, let it be listed separately along with the Special Leave to Appeal which has been filed by the State.
(Tapen Sen, J.) I agree (Mrinal Kanti Sinha, J.) Date: 16.08.2013 L a t e r :-
After we had delivered Judgment in open Court, Mr. Sekhar Basu, learned Senior Advocate, complained that the learned Trial Judge was repeatedly adjourning the matter on one pretext or the other. We are not inclined to make any comments on the grievances of the learned Counsel for the State save and except to record our direction to the effect that no unnecessary adjournments shall be granted and the matter shall proceed with the fastest possible expedition.
(Tapen Sen, J.) I agree (Mrinal Kanti Sinha, J.)