Varinder Singh vs State Of Punjab And Another on 6 August, 2009

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Punjab-Haryana High Court

Varinder Singh vs State Of Punjab And Another on 6 August, 2009

Prayer in the present petition is for quashing of FIR No. 99 dated 2.12.2007, registered under Sections 419, 420, 468, 471 of the Indian Penal Code and Section 12 of the Passport Act, at Police Station Bullowal, District Hoshiarpur.

Briefly, the facts are that one FIR No. 238 dated 30.11.2006 was registered against the petitioner under Sections 419, 420, 468 and 471 of the Indian Penal Code and Section 12 of the Passport Act at Police Station, Chankyapuri, New Delhi on the complaint of Reed Beckmeyer, Assistant Regional Security Officer, Investigations, US Embassy, New Delhi with the allegations that the petitioner, while appearing for grant of visa, tried to impersonate himself by producing a forged passport. In connection with the same offence, the impugned FIR No. 99 was registered at Police Station, Bullowal on 2.12.2007, the quashing of which is prayed for in the present petition.

Learned counsel for the petitioner, while placing reliance on T. T. Antony v. State of Kerala and others, AIR 2001 SC 2637 and Jasjit Singh Bhasin and another v. State of Punjab and another, 2006(2) RCR (Criminal) 813 (P&H), submitted that once the FIR for an offence allegedly committed by the petitioner had been registered at New Delhi, for the same offence subsequent FIR could not possibly be registered in Punjab, especially when the contents and the allegations are same. Referring to the impugned FIR, it was submitted that the complainant Criminal Misc. No. M-2627 of 2008 [2] therein was none else but Superintendent of Police (Headquarters), Hoshiarpur. The FIR was registered on the enquiry report by him. It is specifically noticed therein that during enquiry of FIR No. 238 of 2006, registered at New Delhi, Senior Superintendent of Police, Hoshiarpur had obtained the record of the case and on the basis of same, prima facie case was made out against the petitioner, on the basis of which impugned FIR was registered. It was submitted that once it was within the knowledge of the respondents that for the same offence, FIR was already under investigation at New Delhi, there was no question of registration of second FIR even if some part of the offence was committed in the State of Punjab. The offence committed in Punjab can be said to be linked with the offence committed at Delhi. Once the FIR had been registered at Delhi, investigating/prosecuting authorities at Delhi are well within competence to deal with the offence, which has been committed at other place.

On the other hand, learned counsel for the State submitted that once the offence has been committed within the jurisdiction of Police Station, Bullowal, District Hoshiarpur, after enquiry the police authorities are well within their competence to register the FIR. No fault as such can be found as conviction of the petitioner in New Delhi would be for the offence committed by him there and for the offence committed by him in the State of Punjab, he will be tried and convicted in the State of Punjab. However, he could neither distinguish nor refer to any judgment taking a view contrary to the judgments cited by learned counsel for the petitioner.

Heard learned counsel for the parties and perused the record. To deal with the contentions raised by learned counsel for the parties, it would be appropriate to extract the complaint filed by Reed Beckmeyer, on the basis of which the FIR was registered against the petitioner at Police Station, Chanakyapuri, New Delhi:

"To Station House Officer Chanakya Puri Police Station New Delhi From Reed Beckmeyer Assistant Regional Security Officer-Investigatins Vice Consul U. S. Embassy, New Delhi Subject: Fraudulent Documents Submitted to American Embassy New Delhi in Support of U. S. Immigrant Visa.

On November 30, 2006, a person representing himself as Shiv Criminal Misc. No. M-2627 of 2008 [3] SINGH, DOB 15-APR-1946, PPT F6536975, presented himself at the U. S. Embassy for an interview regarding his pending immigrant visa application. Routine fingerprint checks revealed that he had previously applied for a non-immigrant visa on 26-JUN-2002 under the name Varinder SINGH, DOB 5-OCT-1957, PPT E0606079. Additionally, on 16-NOV-2006, the U. S. Embassy received confirmation from the District Registrar, Birth and Death, Hoshiarpur that the true Shiv SINGH had died on 9-DEC-2004. When presented with these facts, the SUBJECT admitted to Reporting Agent (RA) that he was not Shiv SINGH, and that Shiv SINGH had died several years ago. SUBJECT confessed that his true name was Varinder SINGH, and that he had been refused a U. S. non-immigrant visa in 2002. SUBJECT stated that he received the fraudulent Indian passport (F6536975) in the name of Shiv SINGH from Shiv's widow, Parkash KAUR, DOB 6-JUL-1950, PPT F4343205. The passport contained Varinder's photograph and Shiv's biographical data. This fraudulent passport was issued on 17-FEB- 2006, approximately two years after Shiv's death. (Note: Parkash is a co-applicant on the immigrant visa application. Her potential basis for U. S. immigration would have only been established through her deceased husband's brother, a U. S. citizen). SUBJECT maintained that he had not paid any one for the passport or to take part in this scheme. He stated that Parkash probably wanted someone to impersonate her deceased husband in order to allow her (and the SUBJECT) to immigrate to the U. S. SUBJECT stated that Shiv Singh's brother, Surinder SINGH, DOB 1-APR-1957 (the petitioner/sponsor for Shiv and Parkash's immigrant visa applications) and another U. S. based brother named Bhupinder Singh, were involved in the scheme. SUBJECT stated that Bhupinder and his wife (Jaswinder KAUR) and daughter (Kuljit KAUR) facilitated the scheme by forwarding Surinder's sponsorship paperwork from the U. S. to Parkash's residence in Punjab. Again, SUBJECT stated that Parkash supplied him with the fraudulent passport in the name of her deceased husband, SUBJECT stated that he only supplied the signature for the passport, which he provided to Parkash.

The visa application signed by SUBJECT (in the name of Shiv Criminal Misc. No. M-2627 of 2008 [4] Singh) was dated on 7-MAR-2006. The visa application signed by Parkash SINGH was also dated 7-MAR-2006. The sponsorship paperwork provided in support of their visa applications were signed by Shiv SINGH's brother, Surinder SINGH, on 7-JUN-2006. This release is without prejudice to any rights, privileges, or immunities that the post or members of the post enjoy under applicable laws or treaties and that the information may be used only for the purpose for which it was requested.

The Embassy's archives and documents are inviolable at any time and wherever they may be. In the circumstances of the present case, the U. S. Government expressly waives the inviolability accorded the attached document from such archives, but only for the limited purpose of making available to the Delhi Police the attached document(s) for investigation regarding the case of Shiv SINGH aka Varinder SINGH, et al. Further dissemination requires the written consent of the U. S. Embassy.

If the Indian Court seeks originals of the attached certified copies in a case pending before that court, then the court shall, in the form of a judge's certification, submit a request, which provides information about the nature of the case, including a brief description of the case and how the requested information will assist the court. The Indian Ministry of External Affairs (MEA) shall transmit the court's request to the U. S. Embassy by means of a diplomatic note to preserve the principle of inviolability of visa records under relevant international conventions or customary international law."

A perusal of the contents of the FIR registered at Police Station, Bullowal shows that the information, which was collected by the Superintendent of Police (Headquarters), Hoshiarpur was during the enquiry of the FIR already registered at New Delhi. It was on the basis of this information that besides the petitioner, certain more other persons are involved in the crime that independent FIR was registered at Police Station, Bullowal. Meaning thereby, the Superintendent of Police (Headquarters), Hoshiarpur, on whose complaint the impugned FIR was registered, was well within the knowledge of the FIR for the same offence having been registered at Police Station, Chanakyapuri, New Delhi, prior in time.

Hon'ble the Supreme Court in T. T. Antony's case (supra), while dealing with a similar issue, opined as under:

Criminal Misc. No. M-2627 of 2008 [5]

".... Apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report-FIR postulated by Section 154 of Cr. P.C. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Cr.P.C. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr. P.C. The scheme of the Cr. P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr. P.C. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of Cr. P.C. as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr. P.C. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the Court and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one of more further reports; this is the import of the sub-section (8) of Section 173 Cr.P.C. under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr. P.C. only the earlier or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr. P.C. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offence. On receipt of information about a cognizable offence or incident giving rise to a cognizable offence or offences and on entering the FIR in the station Criminal Misc. No. M-2627 of 2008 [6] house diary, the officer in charge of a Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Cr.P.C."

Similar view was expressed by Hon'ble the Supreme Court in Kari Choudhary v. Mst. Sita Devi and others, 2002(1) RCR (Criminal) 86.

While considering a similar issue, this Court in Jasjit Singh Bhasin's case (supra), where initially the FIR was registered at Chandigarh on 21.5.2005 with regard to some dispute of property and subsequently another FIR was registered at Dera Bassi on 10.6.2005 on the plea that power of attorney was forged and part of the land was also located within the local jurisdiction of Police Station, Dera Bassi, the FIR, which was registered subsequently at Dera Bassi, was quashed. The relevant observations therein are extracted below:

"11. On careful consideration of rival submissions, I do find force in the arguments raised by learned counsel for the petitioners. An information given under sub-section (1) of Section 154 of the Code of Criminal Procedure, is known as the first information report with regard to a cognizable offence. After registration of FIR on the basis of such information, the investigation sets into motion, which ends up with the formation of opinion under Section 168 or 179 Cr.P.C. and thereafter forwarding of police report under Section 173 Cr.P.C. Sometime, more information than one are given to the Incharge of Police Station in respect of the same incident involving one or more than one cognizable offences. In such a situation, every information need not be entered into diary of the police station. All other information, made orally or in writing after the commencement of the investigation into the cognizable offence, disclosed from the facts mentioned in the first information report which may come to the notice of Investigating Officer would be considered as statements under Section 162 Cr. P.C. Such an information cannot be treated as an FIR and entered in the diary of the police station again, as it would amount to be a second FIR which is not in conformity with the scheme of Code of Criminal Procedure. It is, of course,permissible for the Investigating Officer to send a report to the concerned Magistrate that investigation is being conducted against the person(s) mentioned in the FIR in pursuance of the FIR Criminal Misc. No. M-2627 of 2008 [7] already registered. Even if after filing of the report under Section 173 Cr.P.C., the Investigating Officer comes into possession of further information or material, he need not register a second or fresh FIR, as he is empowered to make further investigation with the leave of the Court. During investigation if he collects more evidence oral or documentary, he is obliged to forward the same under the provisions of sub-section (8) of Section 173 Cr.P.C. The Officer-in- Charge of a Police Station has to investigate not merely cognizable offence reported in the FIR, but also other connected offences found to have been committed in the course of same transaction or occurrence and he may file a second or more reports as provided under Section 173 Cr.P.C. In the present case, the second FIR (Annexure P-6) has been registered in respect of the same incident and on the same facts at Dera Bassi, whereas, the FIR (Annexure P-

3) had already been registered at Police Station, Sector 34, Chandigarh.

12. Learned counsel for the respondents argued that High Court should not assume the role of trial court and embark upon an enquiry with regard to reliability or sustainability of evidence on a reasonable appreciation of such evidence and further that powers under Section 482 Cr.P.C. should be exercised sparingly with caution and circumspection. There is no doubt with regard to the argument raised by the learned counsel that exercise of powers under Section 482 Cr.P.C. is an exception and not a rule and such powers have to be exercised sparingly. However, in a case where the police transgresses its statutory powers of investigation, the High Court under its inherent powers can prevent such abuse of process of the court to secure the ends of justice. The Apex Court in State of Haryana and others v. Bhajan Lal and others, 1991(1) R.C. R. (Criminal) 383: AIR 1992 Supreme Court 604, after taking into consideration its various decisions, has observed as under:

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a Criminal Misc. No. M-2627 of 2008 [8] cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is a maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

13. Though it is true that in view of sub-section (8) of Section 173 Cr.P.C., the police can make investigation, obtain further evidence and forward a report or reports to the Magistrate, however, the sweeping power of the investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173 Cr.P.C. It would be clearly Criminal Misc. No. M-2627 of 2008 [9] beyond the purview of Section 154 Cr.P.C. and would amount to abuse of the statutory power of investigation. A case of fresh investigation based on the second or successive FIRs, not being the counter case, filed in connection with the same or connected cognizable offences would be a fit case for exercise of powers under Section 482 Cr.P.C. Coming to the facts of the present case, the allegations made in the FIR (Annexure P-3) registered at Police Station, Sector 34, Chandigarh are verbatim the same as the allegations made in the FIR (Annexure P-6) registered at Dera Bassi. The subject matter and narration of allegations, which need not be reproduced for the sake of repetition, are almost the same. The argument that property in question is different and, therefore, separate FIR is registered is quite fallacious. The basic allegation against the petitioners is that they have forged the general power of attorney of respondent No. 2 in favour of petitioner No. 2 and on the basis of said general power of attorney further transactions have been made. The course adopted by registering second FIR with regard to the same facts and circumstances and making fresh investigation thereof is not permissible under the scheme of the Code of Criminal Procedure."

Section 178 Cr.P.C. provides for jurisdiction for inquiry or trial. In terms of which where either the offence is committed partly in one local area and partly in another or where an offence is a continuing one and continues to be committed in more local areas than one or where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. In the present case, from the facts available on record, it is evident that the offence was partly committed at New Delhi and partly in the State of Punjab. The petitioner was caught at New Delhi. The FIR was registered there first. If during investigation, it is found that some part of the offence was committed in Punjab, the same can very well be inquired into and tried by the courts having jurisdiction at New Delhi. Accordingly, FIR No. 99 dated 2.12.2007, registered under Sections 419, 420, 468, 471 of the Indian Penal Code and Section 12 of the Passport Act, at Police Station Bullowal, District Hoshiarpur and all subsequent proceedings thereto are quashed. However, it is made clear that authorities in Punjab shall assist the Investigating Officer at Police Station, Chanakyapuri, New Delhi in carrying out the investigation of the case so that the accused who is guilty of committing various offences is tried and dealt Criminal Misc. No. M-2627 of 2008 [10] with by the competent Court. Investigation of the case be also expedited.

The petition stands disposed of.

(Rajesh Bindal) Judge August 06, 2009 mk

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