Madhya Pradesh High Court
Pramod Sharma vs Central Bureau Of Investigation on 13 September, 2023
Author: Sheel Nagu
Bench: Sheel Nagu, Avanindra Kumar Singh
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
MISC. CRIMINAL CASE No. 8240 of 2022
BETWEEN:-
PRAMOD SHARMA S/O LATE B.L.SHARMA,
AGED ABOUT 52 YEARS, OCCUPATION:
JOURNALIST R/O ARCHI PURAM NEW
BARAPATHAR, SEONI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SHIVENDRA PANDEY - ADVOCATE)
AND
1. CENTRAL BUREAU OF INVESTIGATION
THROUGH SUPDT. OF POLICE CENTRAL
BUREAU OF INVESTIGATION, 250, MR-4
ROAD, VIKAS NAGAR, JABALPUR
(MADHYA PRADESH)
2. HIMANSHU KOUSHAL S/O LATE SHRI
ASHOK KOUSHAL, AGED ABOUT 32
YEARS, OCCUPATION: EDITOR, DAINIK
SAMVAD KUNJ, R/O KALI CHOWK,
TAIGOR WARD SEONI, (MADHYA
PRADESH)
(RESPONDENT NO.1/C.B.I. BY SHRI VIKRAM SINGH-
ADVOCATE)
...RESPONDENTS
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Reserved on : 04.07.2023
Pronounced on : 13.09.2023
2
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, Hon'ble Shri Justice Sheel Nagu
pronounced the following:
ORDER
This petition invoking inherent powers of this Court u/S.482 of Cr.P.C. seeks quashment of impugned FIR dated 04.10.2021 bearing Crime No.RC0092021A0006 alleging offences punishable u/S.120-B, 420, 468 and 471 of IPC and Section 13(1)(a) r/w 13(2) of Prevention of Corruption Act, 1988 registered at A.C.B. Jabalpur and the consequential proceedings arising thereto.
2. Learned counsel for rival parties were heard on the question of admission so also final disposal.
3. Learned counsel for petitioner, Shri Shivendra Pandey submits that petitioner (accused) is the Editor and Publisher of daily newspaper of 'Dainik Dalsagar' at Seoni (M.P.). The said newspaper is functional since 2020 and its circulation is primarily within the Revenue District of Seoni whereas respondent No.2, who is complainant in the impugned FIR is the owner of daily newspaper 'Dainik Samvad Kunj' having circulation also in the District Seoni (M.P.) and in that view of the matter is the business competitor of petitioner. The Directorate of Public Relations constituted an enquiry committee comprising of four officers to verify the veracity of disclosed figures of number of newspapers printed and circulated as against actual printing and circulation. This enquiry committee conducted search at the premises of petitioner's newspaper on 30.01.2020 and 3 submitted its report vide Annexure P/1 that figures of actual printing and circulation was 2200 per day. The petitioner aggrieved by finding of enquiry report preferred a representation to Collector, District Seoni on 18.06.2020 vide Annexure P/2 challenging the said finding showing deflated figures of actual printing and circulation of newspaper. In response, petitioner was advised on 17.07.2020 vide Annexure P/3 to prefer an appeal to the Appellate Authority at State Level at Bhopal. Consequent thereupon petitioner preferred an appeal on 02.10.2020. It is urged that this appeal was admitted and a direction was passed by letter dated 11.05.2021 vide Annexure P/4 that Commissioner, Public Instructions is the Competent Authority to take appropriate decision awaiting which the number of publications and the advertisements earlier permitted by Directorate of Advertising and Visual Publicity, Government of India, shall be allowed to be availed by petitioner. It is thereafter urged that respondent No.2, the business rival of petitioner lodged an FIR based on enquiry report dated 01.02.2020 bearing Crime No.1080/2020 dated 01.08.2020 alleging offences punishable u/S.3,12,14 and 15 of the Press and Book Registration Act, 1867 (for brevity "Act of 1867") and Section 420 of IPC vide Annexure A/5.
3.1 Thereafter, it is urged by petitioner that respondent No.2 lodged another FIR bearing Crime No.RC0092021A0006 impugned herein, alleging offences punishable u/S.120-B, 420, 468 and 471 of IPC and Section 13(1)(a) r/w 13(2) of Prevention of Corruption Act, 1988 registered at A.C.B. Jabalpur, which is alleged to be founded upon same set of facts and circumstances and incident, which gave rise to the first FIR bearing Crime No.1080/2020.
43.2 In the given facts and circumstances, petitioner assails second FIR bearing Crime No.RC0092021A0006 alleging offences punishable u/S.120-B, 420, 468 and 471 of IPC and Section 13(1)(a) r/w 13(2) of Prevention of Corruption Act, 1988 registered at A.C.B. Jabalpur.
4. It is not disputed at the bar, even by counsel for C.B.I., that pursuant to lodging of impugned FIR bearing Crime No.RC0092021A0006 registered at A.C.B. Jabalpur and conduction of investigation, charge sheet has since been filed against petitioner and one Shri Vijay Chhangwani in November, 2022, but only in respect of offence punishable u/S.420 of IPC. Meaning thereby that no evidence was found by Investigating Agency to support the allegations in respect of remaining offences punishable u/S.120-B, 468 and 471 of IPC and Section 13(1)(a) r/w 13(2) of Prevention of Corruption Act, 1988.
5. Learned counsel for the petitioner in support of challenge to impugned FIR and consequential charge sheet submits that the same is vitiated in the face of earlier charge sheet bearing Crime No.1080/2020 arising out of same incident and allegations having already been registered. It is further submitted that registration of impugned second FIR is mala fide stemming from feeling of revenge nursed by respondent No.2 arising from business rivalry and therefore, need arises to nip the impugned prosecution in the bud because it shall cause petitioner to suffer travails of a long drawn trial with no useful purpose.
6. After having heard learned counsel for rival parties and having perused the contents of impugned FIR and consequential charge sheet filed alleging sole offence punishable u/S.420 of IPC, it is obvious that nature of allegations, the attending evidence and facts, are identical to the nature of 5 allegations and supporting evidence in the earlier FIR bearing Crime No.1080/2020. The complainant in both FIRs is the respondent No.2. The figures shown in both FIRs in regard to obtaining more number of advertisements than what was due to petitioner are also more-or-less identical. Both FIRs further mention about inspection carried out by four member enquiry committee, which is alleged to be the foundation of allegations. However, both FIRs appear to be silent in respect of subsequent stay orders granted by Appellate Authority of the said finding of enquiry committee.
6.1 It appears that respondent No.2-complainant after lodging the first FIR bearing Crime No.1080/202 realized that offences punishable under the Act of 1867, as alleged therein are not stringent enough to give vent to his feeling of revenge arising out of business rivalry. This appears to have impelled the complainant (respondent No.2) to lodge the impugned FIR alleging more serious offences.
6.2 Pertinently, Section 3,12,14 and 16 of Act of 1867 merely attract punishment of fine not exceeding Rs.2,000/- and imprisonment for a term not exceeding six months.
6.3 While the impugned FIR alleges offences attracting punishments to the extent of ten years imprisonment, it is thus obvious as day light that real intention of lodging impugned FIR is to give vent to the feeling of revenge against petitioner due to business rivalry. As such respondent No.2 has misused process of law by lodging impugned FIR with the active connivance of Investigating Agency.
66.4 Despite having clear knowledge of earlier FIR bearing Crime No.1080/2020 having been lodged on the same set of incident, allegations and evidence, the Investigating Agency (C.B.I.) turned a Nelson's eye towards this glaring fact and allowed impugned FIR to be lodged, investigation to be conducted and charge sheet to be filed. This is a clear indication of Investigating Agency (C.B.I.) being hand in glove with the complainant and putting petitioner to unnecessary harassment by misusing State Prosecuting machinery.
7. The allegation in the first FIR bearing Crime No.1080/2020 is that in the District of Seoni number of local newspapers are published out of which some including that of the petitioner, are in the advertisement list of government. The government gives advertisement to some of these newspapers based on the quantum of publication. Further allegation is that two such newspapers are Dainik Dalsagar (owned by petitioner) and co- accused Vijay Chhangwani's newspaper Dainik Yugshresth. The allegations further reveal that based on forged documents these two newspapers project daily publication to the tune of 35000 per day individually and; therefore, in the process obtained undue benefits by way of increased advertisement allocated by the government. Thus, it is alleged that the aforesaid act resulted in undue enrichment of both the newspapers to the tune of Rs.18-20 lacs per annum (jointly). The FIR further reveals that enquiry conducted by Collector, District Seoni found actual daily publication of Dainik Dalsagar to be only 2200 and of Dainik Yughshresth to be only 1800. Conclusively, the allegations allege that petitioner and co- accused by reaping under enrichment caused corresponding undue loss to the public exchequer.
77.1 Whereas the second FIR dated 04.10.2022 bearing Crime No.RC0092021A0006, which is impugned herein is lodged against petitioner and two other co-accused by the same complainant-respondent No.2. Impugned FIR alleges that Dainik Dalsagar, Dainik Yughshresth and another newspaper Dainik Jailok are small scale newspapers, but got registered as medium scale newspapers by showing false inflated circulation. It is alleged that since rate of advertisement given by government is more for a medium scale newspaper as compared to small scale newspaper, undue advantage accrued to the petitioner. The impugned FIR further alleges that in this manner in the last eight years Dainik Yugshresth received advertisement amount of Rs.21,11,017/- while Dainik Dalsagar received advertisement amount of Rs.9,51,643/- and third newspaper namely Dainik Jailok received advertisement amount of Rs.2,66,956/- in three years. On the basis of these allegations, it was alleged that cognizable offence of criminal conspiracy, cheating and forgery including criminal misconduct is committed by the petitioner including two other co-accused and certain unknown public servants. 7.2 A comparative analysis of first FIR bearing Crime No.1080/2020 and impugned FIR bearing Crime No.RC0092021A0006 reveals following common features:-
(i) Respondent No.2 Himanshu Koushal is the complainant in both FIRs;
(ii) The substantial allegation is of projection of inflated figures of newspaper circulation leading to undue advantage to petitioner of receiving more advertisement money than due to the newspaper;8
(iii) The period of circulation and amount of undue enrichment may be different, but the same is founded on the aforesaid basic allegations;
(iv) The offences alleged in the first FIR and the impugned one are different, but the incident and cause giving rise to these offences are the same.
8. Learned counsel for petitioner has relied upon several decisions of Apex Court including a recent one delivered on 23.08.2022 in the case of Tarak Das Mukharjee & Ors. vs. State of Uttar Pradesh & Ors. reported in 2022 Livelaw (SC) 731 where on somewhat similar circumstances though in relation to an incident arising out of an agreement to sale, the Apex Court held thus :-
"9. We have heard the learned counsel appearing for the appellants who submitted that both the first and second FIRs are based on the same set of facts and the same cause of action. Relying upon decisions of this Court in the case of Upkar Singh v. Ved Prakash1 and T.T. Antony vs. State of Kerala 2, the learned counsel submitted that registration of second FIR is a gross abuse of process of law.
10. Though the respondent no.4 has been served, she has not chosen to appear. The learned counsel representing the State of U.P. on instructions stated that though in the counter filed by the State, a contention is raised that the second FIR is based on a different agreement, the said statement is not factually correct and that the second FIR is also based on the same agreement dated 14th June 2006. The learned counsel appearing for the appellants submitted that as stated in the rejoinder, the agreement dated 14th June 2006 was registered on 21st/ 22nd June 2006 and that is how in the second FIR, the date of agreement may have been mentioned as 21st June 2006.
11. We have perused both the FIRs. The respondent no.4 is the first informant in both the FIRs and the same are based on the same agreement for sale executed on 14 th June 2006. The 9 allegation made in both the FIRs is the same. The allegation is that by practising forgery and fraud, the appellant no.1 has sold the subject property to appellant no.2 thereby deceiving the respondent no.4. The second FIR, which is the subject matter of challenge, was registered nearly four years after the first FIR was registered. The challenge to the first FIR is pending before the High Court. These aspects have been completely overlooked by the High Court in the impugned judgment.
12. If multiple First Information Reports by the same person against the same accused are permitted to be registered in respect of the same set of facts and allegations, it will result in the accused getting entangled in multiple criminal proceedings for the same alleged offence. Therefore, the registration of such multiple FIRs is nothing but abuse of the process of law. Moreover, the act of the registration of such successive FIRs on the same set of facts and allegations at the instance of the same informant will not stand the scrutiny of Articles 21 and 22 of the Constitution of India. The settled legal position on this behalf has been completely ignored by the High Court.
13. Accordingly, the appeal must succeed. The FIR No.0177 of 2019 registered at Bhelupur Police Station in District Varanasi, charge sheet dated 12th July 2019 on the basis of the said FIR and the summoning order dated 12th July 2019 passed by the Court of ACJM, Varanasi in Criminal Case No.480 of 2019 are thereby quashed and set aside. No order as to costs."
8.1 Further reliance is placed on Single Bench decision of Meghalaya at Shillong rendered on 10.02.2023 in the case of T. Pathaw vs. Inspector of Police, C.B.I. & Another.
9. Though the principle of double jeopardy, which emanates from Article 20(2) of Constitution and also Section 300 of Cr.P.C., does not apply strictly to the facts and circumstances of the case at hand since petitioner is yet to be found guilty or innocent in regard to first FIR bearing Crime No.1080/2020. However, the objection of same incident giving rise 10 to multiple FIRs, is based more on the prejudice which the accused may face on being subjected to two different set of investigations conducted by two separate investigating agencies often situated far away from each other. It would neither be in the interest of purity of investigation nor to the convenience of accused. More so, these multiple FIRs may lead to multiple trials at far away places, may be thereby denying the accused his precious right to defend himself effectively.
9.1 In the instant case, ostensibly it appears that both the FIRs are alleging different offences under different penal statutes, but if incident giving rise to these different offences is seen, then it is vivid that the cause and incident behind the offences is same, i.e. inflated projection of number of copies of petitioner's newspaper Dainik Dalsagar printed and circulated with oblique motive of attracting more number of advertisements from government and in the process leading to undue enrichment of petitioner and corresponding financial loss to the government. The first FIR bearing Crime No.1080/2020 as well as impugned FIR bearing Crime No.RC0092021A0006 are worded little differently but the essence of allegations are identical.
9.2 Thus, this Court has no manner of doubt that as long as first FIR bearing Crime No.1080/2020 is pending investigation/trial, impugned FIR founded upon same incident and evidence cannot be sustained in the eyes of law.
9.3. This Court stands bolstered while taking the aforesaid view, by the following pronouncements of Apex court, extract of which are reproduced below:-
11In T.T. Antony v. State of Kerala, (2001) 6 SCC 181 "27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case (1979) 2 SCC 322 it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of 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(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, may, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
In Krishna Lal Chawla v. State of U.P., (2021) 5 SCC 435 "22. Frivolous litigation should not become the order of the day in India. From misusing the public interest litigation jurisdiction of the Indian courts to abusing the criminal procedure for harassing their adversaries, the justice delivery 12 system should not be used as a tool to fulfil personal vendetta. The Indian judiciary has taken cognizance of this issue. In 2014, this Court elucidated as follows, the plight of a litigant caught in the cobweb of frivolous proceedings in Subrata Roy Sahara v. Union of India (2014) 8 SCC 470 (SCC p. 642, para
191) "191. ... One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his." While the Court's ruling pertained to civil proceedings, these observations ring true for the criminal justice machinery as well. We note, with regret, that 7 years hence, and there has still been no reduction in such plight. A falsely accused person not only suffers monetary damages but is exposed to disrepute and stigma from society. While running from pillar to post to find a lawyer to represent his case and arranging finances to defend himself before the court of law, he loses a part of himself."
10. From the aforesaid authoritative legal pronouncements of different Courts, it is obvious that the accused cannot be prejudiced by being compelled to face two different FIRs based on the same incident, allegations and evidence.
1310.1 The continuation of proceeding emanating from impugned FIR amounts to misuse of the process of law and judicial process by the Prosecuting Agency.
11. Accordingly, this Court finds that to secure the ends of justice and to prevent miscarriage of justice, this petition deserves to be and is allowed in the following terms:-
(i) Impugned FIR bearing Crime No.RC0092021A0006 alleging offences punishable u/S.120-B, 420, 468 and 471 of IPC and Section 13(1)(a) r/w 13(2) of Prevention of Corruption Act, 1988 registered at A.C.B. Jabalpur, consequential charge sheet and criminal proceedings arising therefrom, stands quashed to the extent it relates to petitioner.
(ii) Since this Court has found patent misuse of process of law by Prosecuting Agency, who appears to be hand in glove with the complainant, Prosecuting Agency deserves to be saddled with exemplary cost in the following terms:-
(a) Cost of Rs.25,000/- is saddled upon the Prosecuting Agency (C.B.I.) to be recovered from erring officer/employee after following due process of law.
(b) Out of aforesaid cost, Rs.15,000/- shall be paid to petitioner by crediting his bank account while remaining Rs.10,000/- shall be deposited with M.P. State Legal Services Authority, Jabalpur. The MPSLSA in turn shall donate this amount to the Permanent Artificial Organ 14 Transplantation Centre, Netaji Subhash Chandra Bose Medical College, Jabalpur.
(iii) Aforesaid cost be deposited within 60 days failing which this matter be listed as PUD qua cost.
(SHEEL NAGU) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
mohsin
Digitally signed by MOHAMMED
MOHSIN QURESHI
Date: 2023.09.14 16:49:35 +05'30'