Jammu & Kashmir High Court - Srinagar Bench
Parvez Ahmad Nengroo vs Ut Of J&K on 27 June, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 20.05.2022
Pronounced on: 27.06.2022
CRM(M) No.232/2020
PARVEZ AHMAD NENGROO ... PETITIONER(S)
Through: - Mr. Sharik Riyaz Jan, Advocate
Vs.
UT OF J&K ...RESPONDENT(S)
Through: - Ms. Asifa Padroo, AAG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has, through the medium of instant petition under Section 482 of the Cr. P. C, challenged FIR No.01/2020 for offences under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B RPC registered with Police Station, Anti-corruption Bureau, Srinagar.
2) The case of the petitioner is that subject matter of the impugned FIR is the same which has been the subject matter of investigation of FIR No.10/2019 registered with Police Station, Anti-corruption, Bureau, Srinagar. It is averred that FIR No.10/2019 was registered on the basis of a written complaint alleging, inter alia, that illegal backdoor engagements of about 3000 Banking Attendants and Page |2 CRMC No. 232/2020 Assistant Banking Associates have been made in the J&K Bank Ltd. of which the petitioner happened to be the Chairman and Chief Executive Officer until 08.06.2019. On the basis of this written complaint, FIR No.10/2019 for offences 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B RPC was registered and investigation was set into motion. It is further averred that investigation of the aforesaid FIR culminated into filing of a number charge sheets/challans out of which two challans were filed against the petitioner impleading him as one of the accused. It is contended that the subject matter of these charge sheets is exactly the same as the subject matter of the impugned FIR, inasmuch in the impugned FIR also, the respondent investigating agency is proposing to hold investigation into the allegations of alleged illegal appointments of Banking Attendants and Assistant Banking Associates in the J&K Bank Ltd. Thus, according to the petitioner, the respondent investigating agency has registered second FIR on the same set of allegations as that of the first FIR which is impermissible in law. The petitioner has relied upon the judgments of the Supreme Court in the cases of T. T. Antony vs. State of Kerala & Ors. (2001) 6 SCC 181, Babubhai vs. State of Gujarat (2010) 12 SCC 254 and Surender Kaushik & Ors. Vs. State of UP (2013).
3) The respondent investigating agency has filed its reply/status report in response to the petition. In its response, the respondent has Page |3 CRMC No. 232/2020 submitted that FIR No.10/2019 was registered on the basis of a complaint in which it was alleged that more than 3000 illegal appointments have been made in the J&K Bank Ltd. It was further alleged in the complaint that seven fraudulent appointments have been made in the J&K Bank Ltd. Branch Dangiwacha which include the appointment of Iqbal Wani, Mehraj Magray, Feroz Ara, Waseem Bhat, Mushtaq Mir and Faizan Chowpan. It was further alleged that in Rohama Branch of the J&K Bank Ltd. several such fraudulent appointments were also made which included the appointment of Ms. Anjum and one more girl from Bandipora. It was also alleged that in October, 2017, 150 persons were illegally absorbed as Banking Attendants and Assistant Banking Associates by throwing the norms to the wind and appointing PDP workers in the bank. The status report goes on to submit that after the investigation of the case, the offences were found established against 17 bank officers/officials including two Chairman of the time besides 06 beneficiaries who have been appointed by the bank authorities in an illegal manner. Four charge sheets are stated to have been filed against the accused persons before the Special Court in this regard.
4) It has been submitted by the respondent in its status report that during the search conducted after registration of FIR No.10/2019, voluminous record pertaining to illegal appointments made by the bank authorities from time to time since the year 2011 was seized and Page |4 CRMC No. 232/2020 on scrutiny of the record, it was found that the bank has appointed 2800 candidates as Assistant Banking Associates and Banking Attendants in an illegal manner during different periods. It is averred that because FIR No.10/2019 focused mainly on illegal appointments of the persons mentioned in the complaint, as such, to have a thorough probe into other illegal appointments, a Preliminary Enquiry No.17/2019 was registered and during the Preliminary Enquiry, the records of the bank were scrutinized and examined. According to the respondent, it came to the fore that a total of 2259 backdoor appointments of Assistant Banking Associates and Banking Attendants have been made by accused Shri Sheikh Mushtaq Ahmad and Shri Parvez Ahmad Nengroo, the petitioner herein, who were holding the post of Chairman of the bank from January, 2011, to June, 2019. It is averred that there was a well-knit conspiracy under which both the aforenamed Chairmen of the bank, during their respective tenures, with the aid and assistance of other officers of the bank, processed the cases of backdoor appointees clandestinely on their whims and caprice. It was also found from the scrutiny of records that accused Sheikh Mushtaq Ahmad, after taking over as Chairman of the Bank in October, 2010, made a total of 1003 backdoor appointments during his tenure which ended in September, 2016, and this was duly facilitated by his subordinate officers who processed the cases of individual candidates from time to time by abuse of their authority as public servants. According to the respondent, the seeds of Page |5 CRMC No. 232/2020 conspiracy were sown in the year 2011 by accused Sheikh Mushtaq Ahmad and his subordinate officers to accommodate their favourite candidates illegally and fraudulently contrary to the provisions of the J&K Bank Officers Service Manual, 2000, by subversion of normal procedure of putting the posts to advertisement.
5) It is further alleged that the petitioner/accused, Parvez Ahmad Nengroo, took over the reins of the Chairman of the J&K Bank in October, 2016, and he also joined the conspiracy and during his tenure, a total 1256 backdoor appointments of Assistant Banking Associates and Banking Attendants were made by adopting the same mode and method as had been adopted by his predecessor. Thus, according to the respondent, the offences under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act, 2006, and Section 120-B RPC were found disclosed, as a result whereof the impugned FIR bearing No.01/2020 was registered against the concerned officers of the bank including its Chairmen.
6) The status report indicates that in order to avoid misjoinder of charges and to segregate the illegal appointments of Assistant Banking Associates and Banking Attendants year wise with effect from 2011 to 2019, the investigation of the case has been split and entrusted to different investigating officers year wise.
Page |6 CRMC No. 232/2020
7) I have heard learned counsel for the parties and perused the material on record including the charge sheets filed in FIR No.10/2019 and the Case Diary of impugned FIR No.01/2020.
8) Learned counsel appearing for the petitioner has raised the solitary contention that the impugned FIR is not competent in view of registration of earlier FIR bearing No.10/2019, that has culminated into filing of the charge sheets against several accused including the petitioner herein. It has been contended by the learned counsel that the subsequent FIR has arisen out of the same transaction and, as such, it was not open to the investigating agency to register the same. The learned counsel has further contended that if at all the investigating agency desired to widen the probe, the only course open to it was to file supplementary charge sheets and not to register a fresh FIR which is impermissible in law. The learned counsel has placed strong reliance upon the ratio laid down by the Supreme Court in the cases of T. T. Antony, Babubhai and Surender Kaushik and others (supra).
9) It has been submitted by learned counsel for the petitioner that the provisions of the Criminal Procedure Code do not permit registration of multiple FIRs in respect of the same transaction. It is contended that as per own case of the respondent, there was a single conspiracy to make illegal and backdoor appointments of Assistant Banking Associates and Banking Attendants which commenced with the tenure of accused Sheikh Mushtaq Ahmad and continued when the Page |7 CRMC No. 232/2020 petitioner took over as Chairman of the Bank in October, 2016. Thus, according to the learned counsel, the offences, which are subject matter of investigation of the impugned FIR and FIR No.10/2019, are part of the same transaction, as such, the impugned FIR deserves to be quashed.
10) Per contra, learned AAG, appearing for the respondent, has contended that FIR No.10/2019 is confined to the instances of illegal appointments mentioned in the written complaint which formed basis of the aforesaid FIR whereas the impugned FIR has a wider sweep, inasmuch as it relates to all the illegal appointments made in the J&K Bank from the year 2011 up to the year 2019. Therefore, according to the learned AAG, the scope of the two FIRs is not the same, inasmuch as the scope of FIR No.10/2019 is very limited whereas scope of the impugned FIR is larger in nature.
11) In order to test the merits of the rival contentions made by learned counsel for the parties, it would be apt to discuss the legal position with respect to multiple FIRs registered for various offences in pursuance of a single conspiracy.
12) In T. T. Antony's case (supra), the Supreme Court has clearly held that there can be no second FIR and consequently there can be no fresh investigation in respect of every subsequent information in respect of the same cognizable offence for the same occurrence or Page |8 CRMC No. 232/2020 incident giving rise to one or more cognizable offences. While explaining this principle, the Court observed as under:
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 or more further reports; this is the import of sub-section (8) of Section 173 Cr.P.C. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr. P. C. only the earliest 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 F.I.R. 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 offences.
On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the F.I.R. in the station 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. .......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) Page |9 CRMC No. 232/2020 of Section 173 Cr. P. C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate ........ 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) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, 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 underway 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 Cr.P.C. or under Article 226/227 of the Constitution.
13) The aforesaid principles were reiterated and reaffirmed by the Supreme Court in the case of Babubhai vs. State of Gujarat (supra) by observing as under:
Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of a cognizable offence recorded by the Officer In-Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police Officer In- charge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary.
P a g e | 10 CRMC No. 232/2020 All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C.
In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted.
14) Similar views were expressed by the Supreme Court in Surender Kaushik's case (supra)
15) In Amitbhai Anilchandra Shah vs. Central Bureau of Investigation and Anr. (2013) 6 SCC 348, the Supreme Court, while dealing with a case which pertained to fake encounter for which two different FIRs were filed, observed that right from the inception of entrustment of investigation to CBI, the Court has also treated the alleged fake encounter of Tulsiram to be an outcome of a single conspiracy alleged to have been hatched in 2005 and culminated in 2006 and in such circumstances, the filing of the second FIR and a fresh charge sheet for the same is contrary to the provisions of the Code. The Court further observed that a second FIR (which is not a cross-case) in respect of an offence or different offences committed in P a g e | 11 CRMC No. 232/2020 the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution.
16) In C. Muniappan vs. State of T.N. (2010) 9 SCC 567, it was observed by the Supreme Court that if an offence forming part of a second FIR arises as a consequence of the offence alleged in the first FIR, then offences covered by both the FIRs are the same and accordingly the second FIR will be impermissible in law.
17) In Vijay Madanlal Choudhary and Ors vs. UOI and Ors. 2014 SCC Online Bom 5039, a Division Bench of the Bombay High Court has, while dealing with a similar issue, observed as under:
"24. There can be no manner of doubt that in respect of the same set of facts, there can be only one FIR. A second report even if lodged cannot be registered as FIR, particularly when offence has already been registered. It would at the most amount to information being communicated to the police during investigation. In the present case, the FIRs indeed disclose the existence of a conspiracy and the representations being made to the consortium. According to the respondents, each individual works contract, therefore, amounted to individual action of cheating of the concerned member banks of the consortium. We had called for the case diaries of the offences which have been registered and we find that in some of the cases, the investigation is complete. At this stage, it would certainly be a premature exercise to determine if the cheating of all the member banks was pursuant to only one conspiracy and, therefore, there should be only one FIR or the cheating of the individual banks is an individual offence which can be investigated by the police. The larger conspiracy appears to be of cheating the banks by suppression of certain vital information, particularly regarding the execution of the master agreement. Pursuant thereto, the individual works contract were executed by the applicants and on the strength of the P a g e | 12 CRMC No. 232/2020 works contract entered into between the Aggregators and the applicants and after individual apprisement of the assessment note and the consortium's approval, the individual banks sanctioned individual credit limits to the applicant no. 2. Thus, the existence of smaller conspiracies pursuant to the larger conspiracy and the inducement of the individual member banks of the consortium to give credit facility would be a matter which would require to be investigated by the police. At this stage, no straitjacket formula can be evolved for determining if it was a single transaction or there were multiple different other transactions whereby the member banks of the consortium were cheated.
25. It is equally true that as per the procedure of the consortium banking, a core committee was formed and representations, if any, were made to the core committee. The core committee was constituted of the members of the consortium banks. Thus any representation which was made by the applicants to the core committee was a representation which was made to the individual banks of the consortium. The core committee was, in fact, acting for and on behalf of the members of the consortium. It cannot, therefore, be said that the representation was made to the core committee only and was not a representation which was made to the members of the consortium. As pointed out by us above, the core committee comprised of the members of the consortium and, therefore, any representation made by the applicants to the core committee, in fact, amounted to a representation being made to the members of the consortium. To summarize, therefore, according to us, since the representations were made to the core committee which was acting on behalf of each individual bank and, therefore, even if no representation was made to the individual banks, yet it amounted to a representation, though made to the core committee, as a representation made to the individual banks. Even if, therefore, at this stage, it is concluded that there was only one larger conspiracy without there being any smaller conspiracies, yet by virtue of the individual works contract, the individual banks were cheated to the extent of the credit facility offered by them, which would, therefore, in our opinion, amount to a distinct and a separate offence, though individual representation was not made to the member banks individually."
P a g e | 13 CRMC No. 232/2020
18) On the basis of aforesaid observations, the Court held that though there was a single conspiracy, yet the act of individually cheating the member banks without there being actually an individual representation would constitute a separate offence and the respondents-banks, therefore, would be justified in lodging individual FIRs.
19) In Dayanand G. Narvekar vs. Police Inspector, 2017 SCC Online Bom. 8803, a Division Bench of the Bombay High Court was dealing with a case where the earlier FIR had been registered against the President of Goa Cricket Association and the other office bearers of the Association alleging misappropriation of an amount of Rs.2,87,00,000/ out of total amount received from BCCI whereas the subsequent complaint, on the basis of which the second FIR was registered, alleged misappropriation of Rs.1.00 crore from out of total amount allotted by the BCCI. It was contended that the second FIR is not competent, in view of the earlier FIR having arisen out of the same transaction. It was further contended that in the charge sheet filed in respect of the earlier FIR as also in the second FIR, the investigating agency has incorporated the offence under Section 120-B of I.P.C, which indicates that the act of opening of the account and the withdrawal of the amount is part of a larger conspiracy and, as such, the second F.I.R would be incompetent. The Court, after examining the matter in detail, held that in order to determine the P a g e | 14 CRMC No. 232/2020 question whether the second FIR pertains to an incident forming part of the same transaction, the Court has to carefully consider the allegations in both the FIRs, having regard to the totality of the facts and circumstances of the case and then to decide one way or the other. It was further held that the conspiracy alleged in the two FIRs can be seen as distinct conspiracies although the modus operandi adopted may be the same or similar. The Court went on to observe that the mere fact that the investigating agency has invoked Section 120-B of IPC in both the FIRs is not sufficient to hold that both the FIRs form subject matter of the same transaction, inasmuch as they pertain to distinct incidents of opening of two distinct accounts in two distinct banks and deposit of two distinct cheques in the said accounts and then alleged siphoning of the funds. The Court, after noticing the law laid down in T.T. Antony (supra), observed that in a case where two FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of the same transaction or the same occurrence as the ones alleged in the first FIR, there is no prohibition in registration of the second FIR.
20) In State of Jharkhand vs. Lalu Prasad Yadav, (2017) 8 SCC 1, which pertained to a matter where 64 cases were registered relating to Bihar Fodder Scheme, the question before the Supreme Court was with respect to joint trial of different cases. The Court, while drawing P a g e | 15 CRMC No. 232/2020 distinction between general conspiracy and number of separate conspiracies having similar general purpose, held that though there was one general conspiracy for the period from 1988 to 1996, yet the defalcations were from different treasuries, for different years and through different means with a different set of accused persons, hence separate trials were required to be conducted.
21) From the aforesaid analysis of law on the subject, the answer to the question whether second FIR is in respect of an offence or different offences committed in the course of same transaction or in respect of same cognizable offence for the same occurrence giving rise to one or more cognizable offences, would depend upon the facts and circumstances of each case. To determine this question, the Court has to meticulously consider the allegations made in both the FIRs and thereafter carefully decide the matter one way or the other.
22) Coming to the instant case, it has been contended by learned counsel for the petitioner that the offences, which are subject matter of two FIRs, have arisen out of a single conspiracy which commenced with the tenure of the then Chairman, Sheikh Mushtaq Ahmad and it continued even after he demitted the office and was replaced by the petitioner herein as the Chairman of the Bank. On this ground it is urged that offences arising out of the two FIRs form part of the same transaction and, as such, the second FIR is not competent. The argument, at first blush, appears to be attractive but when the facts P a g e | 16 CRMC No. 232/2020 narrated in the two FIRs and the charge sheets arising out of the first FIR are scrutinized carefully, the argument does not stand the test of sameness and the consequence test which are necessary for quashing the subsequent FIR. In the first FIR although the allegations regarding a general conspiracy of making illegal appointments in J&K Bank Ltd have been made but then it specifically focuses on illegal appointments of certain individuals, namely, Iqbal Wani, Mehraj Magray, Feroz Ara, Waseem Bhat, Mushtaq Mir and Faizan Chowpan in J&K Bank Brach Dangiwacha and several such fraudulent appointments of various persons including the appointment of Ms. Anjum and one more girl from Bandipora in Rohama Branch of the J&K Bank Ltd. The investigating agency, while investigating the said FIR, has concentrated itself on modus operandi of appointment of aforenamed individuals and has not travelled to investigate the larger conspiracy.
23) So far as the impugned FIR is concerned, the same relates to the larger conspiracy of appointments of all Banking Attendants and Assistant Banking Associates that have been made during the period from the year 2011 up to the year 2019. As per the preliminary verification, 1003 backdoor appointments have been made during the tenure of accused Shri Sheikh Mushtaq Ahmad whereas 1256 illegal appointments have been made during the tenure of the petitioner herein. It is not the case of the petitioner that all the illegal appointments have been made P a g e | 17 CRMC No. 232/2020 through a single order at one and the same time. As is clearly revealed from the material on record, these appointments have been made from time to time over a period of about eight years by issuing a number of appointment orders in violation of the set norms. Thus, it is a case of distinct incidents having occurred which do not form part of the same transaction though the modus operandi for these illegal appointments may have been similar. Each appointment order alleged to have been made by the petitioner and the co-accused constitutes a separate offence and, as such, the instant case does not satisfy the test of sameness. Even the consequence test is not applicable to the instant case, inasmuch as it cannot be said that the second FIR pertains to an incident which may be a consequence of an incident covered by the first FIR. The incidents/occurrences mentioned in the two FIRs being distinct. Thus, I am unable to persuade myself to hold that the second FIR would form part of the same transaction. Even in T. T. Antony's case (supra), the Supreme Court has held that where two FIRs are not in respect of the same cognizable offences or same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of same transaction or the same occurrence as the one alleged in the first FIR, there is no prohibition in registration of the second FIR. Thus, even as per the ratio laid down in the aforesaid case, the lodging of second FIR by the respondent in the instant case is not impermissible in law.
P a g e | 18 CRMC No. 232/2020
24) For the foregoing reasons, this is not a fit case where this Court should exercise its jurisdiction under Section 482 of the Cr. P. C. The petition is, accordingly, dismissed. It is, however, made clear that this Court has not expressed any opinion on the merits of the allegations made in the impugned FIR.
25) The Case Diary be returned to the learned counsel for the respondent.
(SANJAY DHAR) JUDGE Srinagar, 27.06.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No