Jharkhand High Court
Md. Abdulla @ Munna Khan vs The State Of Jharkhand on 28 November, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
-1- Cr.M.P. No. 1265 of 2013
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1265 of 2013
1. Md. Abdulla @ Munna Khan
2. Binod Munda ..... ... Petitioners
Versus
1. The State of Jharkhand.
2. The Deputy Commissioner,
Dimapur, Nagaland. ..... ... Opposite Parties.
--------
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Petitioner : Mr. Saurabh Shekhar, Advocate.
: Mr. Sidharth Sudhanshu, Advocate.
: Ms. Shail Lakra, Advocate.
: Ms. Nidhi Kumari, Advocate.
For the State : Mr. Prabhu Dayal Agarwal, Spl.P.P.
------
23/ 28.11.2023 Heard Mr. Saurabh Shekhar, learned counsel appearing for
the petitioners and Mr. Prabhu Dayal Agarwal, learned Spl.P.P. appearing for the State.
2. This petition has been filed for quashing of the entire criminal prosecution including the First Information Report, bearing Nirsa P.S. Case No. 89 of 2013 corresponding to G.R. No. 1443 of 2013, registered for the offence under Section 25(1-b)(a), 26 of the Arms Act, pending in the court of learned Chief Judicial Magistrate, Dhanbad.
3. The F.I.R. was registered alleging therein that on written complaint filed by one Ravi Thakur, Officer in charge is inter alia that in the light of Memo no. 126 dated 14.02.13 issued by the I.G. Police, Bokaro and memo no. 1810 dated 27.02.2013 issued by the Superintendent of Police, Dhanbad, the arms licence no. 9005/MR issued in favour of Md. Abdulla and arms license no. 96/NL/DMR issued in favour of Binod Munda were verified from Dimapur, Nagaland, and memo were issued from Deputy Commissioner, Dimapur, Nagaland, which declared both the license as wrong. On this information, the informant along with other police personnel reached to the house of Md. Abdulla and searched the house and recover one DBBL gun and cartridges and the same was seized in the presence of the independent witnesses, thereafter the search was conducted in the house of Binod Munda, and from there also one DBBL gun and cartridges were recovered and seized.
On the basis of said written complaint Nirsa P.S. Case no.
-2- Cr.M.P. No. 1265 of 201389/13 dated 05.04.2013, corresponding G.R. Case No. 1443/13 for the offence alleged under Section 25(1-b)(a), 26 of the Arms Act was registered against the petitioners.
4. Mr. Saurabh Shekhar, learned counsel appearing for the petitioners submits that the petitioners are made accused with regard to the same charge in connection with Nirsa P.S. Case No. 167 of 2009 dated 11.09.2009. He submits that for the same charge, the second FIR, being Nirsa P.S. Case No. 89 of 2013, which is the subject matter of the present petition has been registered. He further submits that in the supplementary counter affidavit filed on behalf of the State, it has been disclosed in para-11 that the subject matter of the first FIR, the license was found to be fake and in view of that continuation, the second FIR has been registered, as the wrong fact has been provided by the I.O. of that case. He further submits that the transactions are same and the present case is required to be amalgamated along with the first FIR, being Nirsa P.S. Case No. 167 of 2009 dated 11.09.2009. He further submits that even the arms are different and for violation of certain procedure of the first FIR, which is also the subject matter of the second FIR, both can be amalgamated in view of the judgment of the Hon'ble Supreme Court in the case of Amitbhai Anilchandra Shah Versus the Central Bureau of Investigation & Anr., reported in (2013) 6 SCC 348.
5. Such argument of learned counsel appearing for the petitioners has been resisted by Mr. Prabhu Dayal Agarwal, learned Spl.P.P. appearing for the State on the ground that the subject matter of both the FIRs are not similar and the arms are different. He further submits that the said gun, which is the subject matter of the present case was not seized in the earlier FIR. He further submits that the release order with respect to the arms in question is on the basis of paper transaction. He further submits that the said Gun, which is the subject matter of the present case was not seized in the earlier FIR. He submits that the present FIR is different one as double bore pistol is seized and in view of that this petition may kindly be dismissed.
6. In view of the above submissions of learned counsel appearing for the parties, the court has gone through the contents of the FIR. It is an admitted fact that the first FIR, being Nirsa P.S. Case No. 167 of 2009 dated 11.09.2009 was registered under Section 25(1-b)(a), -3- Cr.M.P. No. 1265 of 2013 26, 35 of the Arms Act. The allegations are there of recovery of pistol and one telescope of the rifle and the said was released in favour of the petitioner as has been pointed out by the learned counsel appearing for the petitioners. In the present FIR, being Nirsa P.S. Case No. 89 of 2013 corresponding to G.R. No. 1443 of 2013 registered for the offence under Section 25(1-b)(a), 26 of the Arms Act, the allegations are there of recovery of DBBL and the cartridges from Syed Mohammad Mobin and Rocky Munda and the Binod Munda, who is petitioner No. 2 in the present case is not the accused in the first FIR. The arms of the first FIR and the second FIR are said to be different, as in the first FIR, the pistol was alleged to be recovered and in the second FIR the DBBL and cartridges were recovered from both the petitioners and the petitioner No. 2 is not the accused in the first FIR. Further the entire ordersheets of Nirsa P.S. Case No. 167 of 2009 has been brought on record, where in order dated 20.11.2009, it has been recorded that DBBL Gun No. A/412832 having license No. 96/NL/DMR and this order has been passed pursuant to the application filed by one of the petitioner, i.e. petitioner No. 1 for release of the said DBBL. Thus, DBBL is shown in both the FIRs. Further in the supplementary counter affidavit, filed by the State, it has been stated in para-11, which reads as under:-
"11. That it further appears that the Sub Divisional Police Officer, Nirsa has given a finding in an inquiry and verification report that a defective and an incorrect report was submitted by the then Sub Inspector namely Shyam Nandan Deo to the learned court of Chief Judicial Magistrate, in connection with Misc. Case N9o. 2467 / 2009 and it has also been found that the facts mentioned in para-25 of the case diary of Nirsa P.S. Case No. 89 of 2013 stating that there two guns were seized in connection with Nirsa P.S. Case No. 167 of 2009 is an incorrect finding of the then Investigation Officer Ram Chandra Kumar bearing Investigation Officer of Nirsa P.S. Case No. 89 of 2013. Hence, the Sub Divisional Police Officer, Sadar has found them guilty of negligence and has recommended for taking necessary departmental proceeding against Sub-Inspector Shyam Nandan Deo and Assistant Sub Inspector Ram Chandra Kumar."
7. Looking into the above paragraph of the supplementary -4- Cr.M.P. No. 1265 of 2013 counter affidavit, it is crystal clear that the subject matter of the present case is also with regard to Nirsa P.S. Case No. 167 of 2009 and pursuant to that the departmental proceeding against one of the Police Sub-Inspector namely Shyam Nandan Deo and Assistant Sub-Inspector Ram Chandra Kumar is said to be there. Thus, prima facie the transaction of the first FIR is also there in the second FIR and if such a situation is there, the case of the petitioners is fully covered in the light of the judgment of the Hon'ble Supreme Court in the case of Amitbhai Anilchandra Shah (Supra). Paras-38 and 39 of the said judgment is quoted hereinbelow:-
"38. Mr Raval, learned ASG, by referring T.T. Antony [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] submitted that the said principles are not applicable and relevant to the facts and circumstances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. The learned ASG further pointed out that in the present case, there are two distinct incidents/occurrences, inasmuch as one being the conspiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati -- a potential witness to the earlier conspiracy to murder Sohrabuddin. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making registration of fresh FIR impermissible and violative of Article 21 of the Constitution is reiterated and reaffirmed in the following subsequent decisions of this Court : (1) Upkar Singh v. Ved Prakash [(2004) 13 SCC 292 :
2005 SCC (Cri) 211] , (2) Babubhai v. State of Gujarat [(2010) 12 SCC 254 : (2011) 1 SCC (Cri) 336] , (3) Chirra Shivraj v. State of A.P. [(2010) 14 SCC 444 : (2011) 3 SCC (Cri) 757 : AIR 2011 SC 604] , and (4) C. Muniappan v. State of T.N. [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] In C. Muniappan [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] this Court explained the "consequence test" i.e. if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then -5- Cr.M.P. No. 1265 of 2013 offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR.
39. In the case on hand, in view of the principles laid down in the abovereferred decisions, in particular, C. Muniappan [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] as well as in Chirra Shivraj [(2010) 14 SCC 444 :
(2011) 3 SCC (Cri) 757 : AIR 2011 SC 604] , apply with full force since according to CBI itself it is the case where:
39.1. The larger conspiracy allegedly commenced in November 2005 and culminated into the murder of Tulsiram Prajapati in December 2006 in a fake encounter.
39.2. The alleged fake encounter of Tulsiram Prajapati was a consequence of earlier false encounter of Sohrabuddin and Kausarbi since Tulsiram Prajapati was an eyewitness to the abduction and consequent murders of Sohrabuddin and Kausarbi. 39.3. Tulsiram Prajapati was allegedly kept under the control of the accused police officers, as a part of the same conspiracy, till the time he was allegedly killed in a fake encounter."
8. In view of the above, if the aforesaid situation is there, the present case is required to be treated as a part of the first FIR, as has been held by the Hon'ble Supreme Court in para-38 of the aforesaid judgment. Further one of the petitioner, who is an accused of the present FIR is not the accused of the first FIR.
9. It is also well settled that inquiry and trial are tight in water-
compartments. The fair trial and re-investigation was the subject matter in the case of Pooja Pal Versus Union of India & Ors., reported in (2016) 3 SCC 135, in which the Article-21 of the Constitution of India was considered, which was the goal of speedy and fair trial. Reference may be made to paras-83 and 86 of that judgment, which are as under:-
"83. A "speedy trial", albeit the essence of the fundamental right to life entrenched in the Article 21 of the Constitution of India has a companion in concept in "fair trial", both being in alienable constituents of an adjudicative -6- Cr.M.P. No. 1265 of 2013 process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the state police notwithstanding, has to be essentially invoked if the statutory agency already in-charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.
86. A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof.
Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community -7- Cr.M.P. No. 1265 of 2013 at large and therefore cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though, well demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard and fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice."
10. By way of Section 173(8) of the Cr.P.C., the police department has been armed with the power to further investigate an offence, even after a police report has been forwarded to the Magistrate and in the light of that investigating agency of Jharkhand, although submitted that the chargesheet and the trial of the first case is going on is required to further reinvestigate the matter.
11. Further the mere fact that there may be further delay in concluding the trial should not stand in the further investigation, if that helps the Court in arriving at the truth and real fact and also to substantiate the effective justice. Reference may be made to the case of Hasanbhai Valibhai Qureshi Versus State of Gujarat, reported in (2004) 5 SCC 347, where in paras-11, 12 and 13, it has been held as follows:-
"11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the Court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth.
12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier -8- Cr.M.P. No. 1265 of 2013 submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.
13. In Ram Lal Narang and Anr. vrs State (Delhi Admn.) (AIR 1979 SC 1791) it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the mater by the Courts. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case."
12. In the facts of the above case and in the light of discussions made hereinabove, the mere fact that the trial in one of the case is going on and delay in concluding the trial will be delayed if any order is passed by this court not to be there as in the criminal justice system, fair trial and investigation is the requirement. The court is not expressing any final opinion on the merits whatever will come that will come in the further investigation.
13. In view of the above, let the First Information Report bearing Nirsa P.S. Case No. 89 of 2013 corresponding to G.R. No. 1443 of 2013 be treated as part of the first FIR, being Nirsa P.S. Case No. 167 of 2009.
14. The police will further re-investigate the matter and submit -9- Cr.M.P. No. 1265 of 2013 the supplementary chargesheet. Much delay has already occurred as there is stay by this court to further investigate the matter. It is expected the police will submit the supplementary chargesheet within four months and the supplementary chargesheet will be submitted before the learned court and after submission of the supplementary chargesheet, the learned trial court will proceed and till then the pending trial before the learned court in connection with Nirsa P.S. Case No. 167 of 2009 shall not proceed and after submission of the supplementary chargesheet, the learned court will proceed in accordance with law.
15. This petition is allowed and disposed of in the above terms.
(Sanjay Kumar Dwivedi, J.) Amitesh/-
[A.F.R.]