Kerala High Court
V.Jayanandakumar vs State Of Kerala on 28 May, 2021
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 28TH DAY OF MAY 2021 / 7TH JYAISHTA, 1943
WA NO. 558 OF 2021
AGAINST THE ORDER/JUDGEMENT IN WP(C) 20028/2013 OF HIGH COURT OF
KERALA
APPELLANT/PETITIONER:
V.JAYANANDAKUMAR
0
AGED 61 YEARS
S/O. P.K. VELUPILLAI, RESIDING AT TC 13/223,
VADAKKUVILAKOM, PANNIVILAKOM LANE, PATTOOR, PETTAH
POST, THIRUVANANTHAPURAM 695 024, (LAW OFFICER,
COMMERCIAL TAXES, KOZHIKODE (RETIRED).
BY ADV C.S.MANU
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE
GOVERNMENT OF KERALA, VIGILANCE (A) DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN-695 001.
2 DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI CORRUPTION BUREAU,
THRISSUR, PIN-680 001.
3 COMMISSIONER OF COMMERCIAL TAXES,
TAX TOWER, KILLIPALAM, KARAMANA P.O,
THIRUVANANTHAPURAM, PIN-695 003.
SRI.ARAVINDAKUMAR BABU T.K.,SENIOR GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28.05.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.558 of 2021
2
JUDGMENT
Dated this the 28th day of May, 2021 S.Manikumar, C.J.
Being aggrieved by the judgment in W.P.(C)No.20028 of 2013 dated 8.2.2021, instant writ appeal is filed.
2. Short facts leading to the filing of the writ appeal are as hereunder:
The appellant herein is the petitioner in the above writ petition.
The writ petition is filed challenging Exhibit P1 F.I.R. filed by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Thrissur/2nd respondent, allegedly being a second F.I.R. filed in violation of the settled principles of law and disregarding the statutory protection envisaged under law, alleging offences punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120B of the Indian Penal Code, in respect of certain official acts alleged to have been done by him while he was working as Inspecting Assistant Commissioner (Intelligence), Commercial Taxes, Thrissur. The contention of the appellant is that, Intelligence Officer, Commercial Taxes, working under the appellant, while the appellant was working as the Inspecting Assistant Commissioner (Intelligence), Thrissur, had inspected the place of W.A.No.558 of 2021 3 business of M/s Nano Excel Enterprises Pvt. Ltd. under Section 44 of the Kerala Value Added Tax Act, 2003 on 3.2.2010. Subsequently, notice under Section 67 of the Act was issued to the dealer Company.
The Company thereupon applied for departmental composition of the offence under Section 74 of the Act. The Intelligence Officer after considering the application collected maximum compounding fee of Rs.4,00,000 (Rupees Four Lakhs Only) payable under the Act and tax amount due of Rs.7,00,68,469/- (Rupees Seven Crores Sixty Eight Thousand Four Hundred Sixty Nine Only) and completed the proceedings and the file was transferred to the assessing authority for further follow up action. The official acts performed by the appellant in his capacity as Inspecting Assistant Commissioner (Intelligence), Commercial Taxes, Thrissur, are protected under section 79(1) of the Kerala Value Added Tax Act, 2003. The said provision requires that no suit, prosecution or other legal proceedings shall lie against any officer of the Government for any act done or purporting to be done under the said Act without the previous sanction of the Government. A period of limitation of 6 months is also stipulated under Section 80 of the Act for the institution of any such suit prosecution or other proceedings with the previous sanction of the Government. The W.A.No.558 of 2021 4 period of limitation begins to run from the date of the act complained of. The above said F.I.R. has been launched against the appellant in gross violation of the above said mandatory provisions of law.
Moreover it is the second F.I.R. concerning the very same acts complained of, since the earlier FIR No.500 of 2011 culminated in the Final Report/Charge Sheet dated 1.1.2012 before the Chief Judicial Magistrate's Court Thrissur, arraying the appellant as Accused No.65 alleging offences punishable under sections 406 and 420 of the I.P.C.
The second F.I.R. in respect of the very same transactions is unsustainable and illegal. In the above said circumstances, the appellant filed writ petition seeking to quash the F.I.R. Therefore it is contended that the learned single Judge, without properly considering the various contentions raised by the appellant, dismissed the writ petition as per judgment dated 8.2.2021. Aggrieved by the same, instant writ appeal is filed.
3. Assailing the correctness of the judgment in W.P.(C)No.20028 of 2013, the appellant has inter alia raised the following grounds:
A. The learned Single Judge by mistake has assumed that the appellant/petitioner was the Commercial Tax Intelligence Officer at Thrissur. As a matter of fact the appellant/petitioner was not the Intelligence Officer who had conducted the inspection and W.A.No.558 of 2021 5 processed the file, but he was the Inspecting Assistant Commissioner of Commercial Taxes (Intelligence) who had only the supervisory duty. The Intelligence Officer was the competent officer exercising the quasi judicial functions like inspection and other related functions like verification of documents, detection of offences, imposition of penalty and departmental compounding of offences. The learned Single Judge has also gone wrong in observing at paragraph 2 of the judgment that the appellant and his team conducted inspection at the business premises of M/s.Nano Exel Enterprises Ltd. As a matter of fact the appellant was not a member of the inspection team. He was only an official supervisor.
B. The learned Single Judge ought to have held that the bar under section 79(1) of the Kerala Value Added Tax Act, 2003 would apply to the facts of the case. The observations of the learned Single Judge that accepting bribe cannot be considered as an act done or purporting to be done under any statute and the initiation of criminal proceedings against the appellant without previous sanction of the Government does not attract bar under section 79(1) of the Act is not correct. The word used under the section is "any act done" or "purporting to be done under this act". Words purporting to be done under the act means it need not be an act done under the Act. But it is done as if it is for doing an official act. The word "purporting" means "appear to be or do something, especially falsely". Therefore the legislature intends to give statutory bars on all acts illegally done, but purporting to be under the act, under section 79(1) of the Act. In other words, the W.A.No.558 of 2021 6 intention of the legislature to give protection to a public servant from any prosecution in respect of any act done by him which has nexus to his official acts. So what is to be considered is whether the act complained of by the appellant was having any nexus with his official acts. Alleged act complained of against the appellant is that he obtained illegal gratification for helping the accused for evading tax by levying lesser amounts of compounding fee. So the alleged act is inseparably and inextricably connected with the official act.
C. It is respectfully submitted that if the observation of the learned Single Judge in respect of protection under section 79(1) of the KVAT Act has accepted, no public servant discharging his duties under the provisions of the KVAT Act would get protection in respect of his official acts, on the ground that the alleged act complained of against him is alleged to be a criminal act amounting to an offence. So protection cannot be denied by simply holding that under the Act the public servant is not authorized to do any criminal offence.
D. The learned Single Judge ought to have found that the appellant claimed protection under section 79(1) of the KVAT Act and not under section 79(2) of the said act. The appellant only claimed that without previous sanction of the Government the FIR could not have been launched against him. FIR is a proceeding under section 79(1) of the act. FIR also amounts to prosecution of a person. E. It is respectfully submitted that the learned Single Judge seriously went wrong in not holding that the FIR is barred by limitation prescribed under section 80 of the KVAT, Act.W.A.No.558 of 2021 7
F. It is respectfully submitted that the learned Single Judge patently went wrong in holding that "where the incident is separate whether offences are similar or different or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then the 2" FIR can be registered." The said observation can not be accepted in toto. It may be correct to state that where incidents are different, separate FIRs can be registered. But the observations that there was subsequent crime as of such magnitude that it does not fall within the ambit and scope of the FIR recorded, is manifestly incorrect. Thus the 2nd FIR can be registered is absolutely unsustainable. G. The learned Single Judge ought to have found that the 2 nd FIR in this case is not a counter case or different version raised by the accused.
H. The learned Single Judge did not correctly applied the ratio decidendi of the rulings of the Hon'ble Supreme Court in T.T.Antony Vs State of Kerala reported in AIR 2001 SC 2637. It is specifically held by the Hon'ble Supreme Court that there can be no 2 nd 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 alleged to have been committed in the course of the same transaction in respect of which pursuant to the 1st FIR either investigation is under way or final report under section 173(2) has been forwarded to Magistrate. It is to be noticed that in both the FIRs in the instance case the occurrence/incident was on 9-2-2010 and the allegation was the W.A.No.558 of 2021 8 same, i.e. the appellant is alleged to have helped the accused assessee for evading tax by levying a reduced compounding fee and received illegal gratification to the tune of Rs.1.5 Crores. Though different offences are alleged in the subsequent FIR, the allegations and the date of occurrence are the same. In the instant case the complainant as well as the accused are also the same. I. The learned single judge ought to have appreciated the law laid down by the three Judge Bench in Upksr singh Vs Ved Prakash & Ors (2004) 13 SCC 292, wherein it was held that 'any further complaint by the same complainant or others against the same accused subsequent to the registration of a case is prohibited under the code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement of the facts mentioned in the original complaint, hence will be prohibited under section 162 of the code. This prohibition does not apply to counter complaints by the accused in the 1st complaint or in his behalf alleging a different version of the said incident.
J. The learned single Judge ought to have found that the registering of Exhibit P-1 second FIR would amount to conducting further investigation without seeking permission from the Court where the earlier police report was filed under section 173(2) of the Cr.P.C. It is to be noticed that in the earlier case, the appellant was discharged by the learned Chief Judicial Magistrate, Thrissur in respect of the very same allegations arising out of the very same incident/occurrence.
K. The observation made by the learned Single Judge in paragraph 14 W.A.No.558 of 2021 9 of the impugned judgment that the canvas of Exhibit P-1 FIR and the previous FIR appears to be absolutely different in both the FIRs. The substantial allegation was that on 9-2-2010 the appellant had done certain official acts in favour of a dealer for the purpose of evasion of tax and received illegal gratification from the accused assessee. The appellant was the accused in both the cases. State was the complainant in both the cases. The date of occurrence is the same. The facts and allegations are the same. The only difference is in the second FIR offence under section 13(2) of the PC Act, 1988 and offence under section 120B of IPC were alleged. Therefore applying the test of sameness would manifest the Exhibit P-1 as a second FIR in respect of the same occurrence and therefore the same is liable to be quashed.
L. The learned Single Judge did not consider the Exhibit P-3 order passed by this Hon'ble Court. Though it is an order granting bail this Hon'ble Court considered the question of law involved in the matter. Therefore the Learned Single Judge was not justified in not considering Exhibit P-3 order. Findings on law made by this Hon'ble Court even in a bail application is having binding force. This Hon'ble Court as per Exhibit P-3 has held that on going through the materials produced the contentions made by him in paragraph 8 of his bail application are liable to be accepted. The said contentions include the statutory protections pleaded by the appellant. Therefore this Hon'ble Court in Exhibit P-3 order accepted the statutory bar against Exhibit P-1 FIR.
M. This Hon'ble Court in Exhibit P-3 order also observed that at paragraph 13 that various documents produced in the case was W.A.No.558 of 2021 10 also engaged that the appellant had reported all relevant matters to his Superior Officer promptly, that the Government approved and appreciated enormous work done by the petitioner and his team and that even if the proceedings are initiated against the appellant under the PC Act, the built in safeguards there under would be available to him which would include the statutory bar contemplated under section 79(1) and 80 of the Act which the learned Single judge failed to consider and appreciate. N. The forgoing grounds and legal position would manifest that the appellant is entitled for the statutory protection envisaged under section 79(1) and 80 of the KVAT Act, 2003 and also under section 3 of the Judges(Protection) Act, 1985 and further that the ExhibitP1 FIR is a second FIR on the facts of the case which amounts to a reinvestigation without obtaining permission from the competent court in respect of a crime of same occurrence for which final report has already been filed, which is impermissible under law and so the Exhibit P1 FIR is liable to be quashed.
4. A statement dated 7.7.2020 has been filed on behalf of the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Thrissur/2nd respondent, refuting the allegations made in the writ petition. Relevant paragraphs read thus:
"9. The FIR in Exbt.P1 was registered on the facts and evidences disclosed in a Vigilance Enquiry conducted by a DySP of Special Investigation Unit II, Trivandrum. It was based on his findings and recommendation that the Director issued W.A.No.558 of 2021 11 orders to the DySP, VACB, Thrissur to register a case. Hence the contention of the petitioner that Exbt.P1 was registered as to settle scores with the Petitioner is totally unfounded and baseless.
10. The offences alleged against the petitioner in Exbt.P1 are not offences alleged to have been committed while acting or purporting to act in discharge of official duty. Hence there is no bar in the registration of the case for offences which do not have any nexus with the official duty of the petitioner.
11. The allegation contained in Exbt.P1 was brought to light by print and visual medias which were later subjected to a Vigilance Enquiry. It was the commissioner of Commercial Taxes, who had requested the Government to conduct a Vigilance probe into the allegations reported by the Press to ascertain the truth or otherwise of the allegations.
12. The allegations mentioned in Exhibit P1 have the support of reliable evidence and materials. It was based on proper evaluation of the materials gathered in the Vigilance Enquiry that the FIR in Exhibit P1 was registered against the petitioner and 2 others. The tax liability of around 11 Crores which would have been assessed on the basis of sales turnover of the company was reduced to 7.8 Crs and the rate of tax reduced from 12.5% to 4% by benefiting the Company as reward for obtaining an amount of Rs.1.5 Crs as bribe by the petitioner. Since the records seized from the company were returned to them on the same day of assessment and remittance, it was not possible for the department to re-check the correctness of the assessment.
13. The allegation against the petitioner is not in W.A.No.558 of 2021 12 relation to exercise of discretion by the officer concerned. The tax liability which has been determined by a special team on the basis of sales turnover and the rate of tax reduced from 12.5% to 4% as a quid pro quo for payment of bribe of Rs.1.5 Crs. As a result of which, the Government sustained heavy loss thereby benefiting the company. The materials gathered in the Vigilance Enquiry prima facie show that the petitioner has committed the offences alleged in Exbt.P1.
14. The Department is obviously deprived of the opportunity to reassess the tax as the entire records seized from the company have been returned to the company. The department conducted two enquiries which lead to the findings of malpractice performed by the petitioner. Moreover based on the departmental enquiry, those persons including the petitioner involved in the preparation of checklist, reducing tax rate 12.5% to 4%, and the instant release of the records seized, were suspended from service.
15. The acts alleged against the petitioner do not have any nexus with the quasi-judicial or official function of any authority. An act of acceptance of gratification other than legal remuneration as a motive or reward for exercising one's official function will not come with the scope of a quasi-judicial or official function. Hence, the petitioner is not entitled to get protection under section 3 of the Judge's Protection Act 1985.
16. In view of the above mentioned facts and reasons. the allegation in Exbt.P1 since been overwhelmingly supported by reliable evidence and materials and that the acts alleged against the Petitioner were not done in the discharge of the official duties of the Petitioner, the contentions of the Petitioner W.A.No.558 of 2021 13 are untenable and unsustainable. Hence the prayer of the Petitioner is liable to be dismissed.
17. While, the investigation was in progress, Petitioner filed a Writ Petition (C) No.20028/13 before the Hon'ble High Court of Kerala for quashing the FIR and further proceedings and obtained Stay up to 26.03.2015 (IA.No.4115/2015).
18. The Investigation of this case has been completed and the Factual Report has been submitted before the Director, VACB for scrutiny of evidence. On receipt of the scrutiny report, the Final Report will be submitted before the Hon'ble Court of Enquiry Commissioner and Special Judge (Vigilance), Thrissur."
5. We have heard Mr. C.S. Manu, learned counsel for the appellant, Mr. T.K. Aravindakumar Babu, learned Senior Government Pleader and perused the pleadings and materials on record.
6. The subject issue relates to a crime registered against the appellant under the provisions of Prevention of Corruption Act, 1988.
The point raised by the appellant basically is that in regard to the very same incident of compounding under the Kerala Value Added Tax Act, 2003, Crime No.500 of 2011 of Wadakkanchery Police Station was registered for offences punishable under Sections 406 and 420 of the Indian Penal Code. Therefore, the registration of a second FIR, as regards the very same incident, alleging offences under the provisions of the Corruption Act is not sustainable under law. In order to substantiate W.A.No.558 of 2021 14 the said point, appellant has raised various issues, including double jeopardy, a protection given under Article 20(2) of the Constitution of India, 'issue estoppel', and the protection under the Judges (Protection) Act, 1985.
7. The learned single Judge has considered the issues raised by the appellant, taking into account the decisions of the Hon'ble Apex Court cited therein, and arrived at the conclusion that the appellant is not entitled to get the FIR quashed. In fact, the learned single Judge threadbare considered the issues raised and has arrived at the conclusion that the FIR sought to be quashed by appellant is in regard to different offences under the Prevention of Corruption Act and the Indian Penal Code. In fact, in the first FIR, the issue was with respect to the offence punishable under Sections 406 and 420 of the IPC. In the first FIR, charge was submitted before the Chief Judicial Magistrate Court, Thrissur and the appellant was discharged. The appellant was the 65 th accused in the said case.
8. Even going by the contentions put forth by the appellant, what we could gather is that the appellant was not involved in the matter of conducting the inspection, and the attributions made in Exhibit P1 FIR are in regard to the favours given by the appellant to the assessee by W.A.No.558 of 2021 15 reducing the tax from 12% to 43% and thereby, gaining financial advantages to the tune of more than three Crores. It was accordingly, the FIR was registered by the vigilance, alleging offences under the Indian Penal Code.
9. It is well settled that an FIR registered by the police is only an initiation of a proceeding and for the purpose of carrying on the investigation. Eventhough the appellant has raised various contentions with respect to the protection, he is entitled to get, as per the provisions of the Kerala Value Added Tax Act, 2003, and the protection provided thereunder for the official acts performed by the appellant, it is a subject matter of investigation by the Vigilance, and a writ court is not expected to rule upon such intrinsic aspects. That apart, the provisions of Judges (Protection) Act, 1985 are to enable a Judge adjudicating a case to act without fear or favour and to protect from being harassed in any other manner while performing an official act and not otherwise. We also do not think that the provisions of Act, 1985 are to be extended to an official functionary, who fundamentally discharges administrative duties and conferred with implied duties of quasi judicial functions. Moreover the phraseology employed thereunder is a judgment rendered by a judge, which can never be an order passed or a decision taken by an W.A.No.558 of 2021 16 administrative authority. Moreover, even assuming that the provisions of Act, 1985 can be extended to a quasi judicial functionary like the appellant, it can only be to the extent of protecting the official/judicial act to that extent and not outside the purview of the same. The protection provided under the Kerala Value Added Tax Act, 2003 is to sustain the confidence of the officers to function without fear or favour, however, it can never be extended to a person, who has indulged himself in any criminal activities. In our considered opinion, the allegations and attributions made in Exhibit P1 FIR against the appellant have no manner of correlation with the allegations contained in the previous FIR registered by the Wadakkanchery Police Station, wherein the appellant was discharged, and it was only in regard the losses suffered by the state consequent to breach of trust and cheating employed by the officials and others.
10. Here, in the present FIR, specific allegations are made with regard to the abuse of official position of the appellant by conspiring with the other accused, in order to secure the financial advantage of Rs.1.5 Crores, in a hotel at Thrissur, on 9.2.2010. The subject issue leading to the incident may be one and the same, but ultimately the conspiracy and the receipt of the bribe to abuse his official position is entirely a different W.A.No.558 of 2021 17 matter than the case put forth in the earlier FIR under Sections 406 and 420 of the Indian Penal Code. Therefore, in our considered opinion, the learned single Judge was right in holding that the appellant is not entitled to get the relief of interfering with Exhibit P1 FIR registered by the Vigilance Department.
11. In fact the Judgments cited by the appellant were appreciated by the learned single Judge and has distinguished the same. Further, the learned single Judge has relied on various decisions of the Hon'ble Supreme Court to arrive at the conclusion that the appellant is not entitled to secure any relief at the stage of FIR. In order to understand the conclusions arrived at by the learned single Judge in its entirety, we deem it appropriate to extract the relevant portions of the judgment which are as hereunder:
"Second First Information Report
28. Previous to Ext.P1 FIR, another case was registered against the petitioner as Crime No. 500/2011 of the Wadakkanchery police station. It was a case registered under Sections 406 and 420 read with 34 IPC and Sections 3 to 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. There were altogether 65 accused in that case and the petitioner was Accused No.65. After completing the investigation, final report in that case was filed and cognizance of the offences was taken by the learned Chief Judicial W.A.No.558 of 2021 18 Magistrate, Thrissur on the basis of the final report and the case was numbered as C.C. 23/2012 of that court.
29. Accused 1 to 7 in the aforesaid case were the Managing Director and the Directors of the company M/s. Nano Excel Enterprises. Accused 8 to 64 were the promoters and agents of the company. The allegation against them was that they deceived many persons by making misrepresentation to them that if money was deposited in the company, it would be returned with high profits. It was alleged that many persons deposited money in the company but the accused did not repay the amount. The offence alleged against the petitioner herein, who was Accused No.65 in that case, was under
Section 109 of 420 IPC. The allegation against him was that he received illegal gratification of one and a half crore rupees from the company and he assisted the company to continue its activities and thereby, he abetted the act of cheating persons who had deposited money in the company.
30. The petitioner filed an application for discharge under Section 239 of the Code in the case C.C.No.23/2012 before the Chief Judicial Magistrate, Thrissur. The aforesaid application was allowed by the learned Chief Judicial Magistrate and as per the order dated 14.03.2014, the petitioner was discharged.
31. Learned counsel for the petitioner has contended that, registration of Ext.P1 FIR by the VACB, subsequent to the registration of Crime No.500/2011 of the Wadakkanchery police station, was bad in law. Learned counsel would contend that Ext.P1 FIR against the petitioner was registered on the same set of facts and allegations contained in the previous FIR.W.A.No.558 of 2021 19
Learned counsel would contend that, registration of a second FIR on the same set of facts and allegations as contained in the first FIR, is not permissible under law.
32. The law on the question of registration of a second FIR is now fairly well-settled. 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 offences. But, where the incident is separate, whether offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered.
33. First information report under Section 154 of the Code is the first information of a cognizable offence recorded by the officer in charge of a 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 of the Code, as the case may be, and forwarding of a police report under Section 173 of the Code. Therefore, a second FIR for the same incident cannot be registered. However, where the incident is separate, whether offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered (See Anju Chaudhary v. State of U.P : (2013) 6 SCC 384).
34. It has to be examined on the merits of each case whether a subsequently registered FIR is a second FIR about W.A.No.558 of 2021 20 the same incident or offence or whether it is based upon distinct and different facts and whether its scope of investigation is entirely different or not. 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 (See Babubhai v. State of Gujarat : (2010) 12 SCC 254).
35. Only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. 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 offences. 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) of the Code. It would clearly be beyond the purview of Sections W.A.No.558 of 2021 21 154 and 156 of the Code, nay, a case of abuse of the statutory power of investigation in a given case. 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) of the Code has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 of the Code or under Article 226/227 of the Constitution (See T.T. Antony v. State of Kerala :
AIR 2001 SC 2637).
36. In the present case, the petitioner has not produced copy of the FIR in Crime No.500/2011 of the Wadakkanchery police station. Therefore, this Court is not in a position to apply the "test of sameness", as held in Babubhai (supra), to decide whether the FIRs are based on the same incident or whether the scope of investigation is entirely different or not.
37. The discharge order passed in favour of the petitioner in the other case cannot be considered to decide whether Ext.P1 FIR constitutes a second FIR on the same incident. Ext.P1 FIR was registered long before the date of discharge of the petitioner in the other case.
38. However, the petitioner has produced a copy of the final report filed by the police in Crime No.500/2011 of the Wadakkanchery police station. It would show that the allegation against the petitioner in that case was that he committed an offence under Section 109 of Section 420 IPC by permitting the company to continue its activities and thereby W.A.No.558 of 2021 22 assisting the company to cheat the persons who had deposited money in it.
39. Though it is mentioned in the final report filed in Crime No.500/2011 of Wadakkanchery police station that the petitioner had received one and a half crore rupees from the company, the scope of investigation of that case was not with regard to receiving such illegal gratification by the petitioner.
The scope of the investigation of that case was the act of cheating committed by the company against the persons who deposited money in it. There is no material to show that the FIR in Crime No.500/2011 of Wadakkanchery police station was registered on the basis of the incident that took place on 9.2.2010 in Hotel Pearl Regency in Thrissur where the petitioner had allegedly taken bribe from the company. Therefore, it cannot be found that the registration of Ext.P1 FIR for an offence under the Prevention of Corruption Act was not permissible in law.
40. Learned counsel for the petitioner has placed strong reliance upon the decision of the Apex Court in Amitbhai Anilchandra Shah v. Central Bureau of Investigation (AIR 2013 SC 3794) in support of his plea that Ext.P1 FIR is a second FIR based on the same incident. It was a case in which the investigation of the case which was conducted by the State police was taken over by the CBI as per the order of the Apex Court. The CBI registered a second FIR with regard to the same incident on the basis that a larger conspiracy was involved and it required investigation. The Apex Court held that the second FIR registered by the CBI was in respect of the same transaction which was the subject matter of investigation W.A.No.558 of 2021 23 in the previous FIR and therefore, quashed the second FIR. This decision has no application to the facts of the present case.
41. On the other hand, the decision of the Apex Court in Nirmal Singh Kahlon v. State of Gujarat (AIR 2009 SC
984) applies to the facts of the present case. In that case, the Apex Court has held as follows:
"It may be true that in both the FIRs Kahlon was named. He was considered to be the prime accused. But, it is one thing to say that he acted in his individual capacity and it is another thing to say that he conspired with a large number of persons to facilitate commission of crime by him as a result whereof all of them had made unlawful gains. .........whereas the first FIR did not make any allegation as regards existence of a conspiracy, the second FIR did. The canvass of two FIRs is absolutely different. The numbers of accused in both the FIRs are also different. ...... If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and / or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged".
42. Here also, the canvass of Ext.P1 FIR and the previous FIR appears to be absolutely different. It can be presumed from the final report filed by the police in Crime No.500/2011 of the Wadakkanchery police station that the investigation in that case did not pertain to any allegation of conspiracy and receiving illegal gratification by the petitioner. Ext.P1 FIR contains allegation regarding conspiracy to commit W.A.No.558 of 2021 24 an offence under the Prevention of Corruption Act.
43. In the aforesaid circumstances, the plea of the petitioner that Ext.P1 FIR is a second FIR in relation to the same incident cannot be accepted.
Double Jeopardy
44. Another contention raised by the learned counsel for the petitioner is that, in view of the discharge of the petitioner in the case C.C.No.23/2012 by the Chief Judicial Magistrate, Thrissur, he is not liable to be prosecuted and tried on the same set of facts and allegations.
45. Article 20(2) of the Constitution of India states that, no person shall be prosecuted and punished for the same offence more than once. In order to operate the bar under Article 20(2) of the Constitution, the second prosecution and the consequential punishment thereunder, must be for "same offence", that is, an offence whose ingredients are the same. The application of this provision is conditioned by the identity of the two offences which form the subject of the prosecutions. The crucial requirement for attracting Article 20(2) is that the offences are the same, that is, they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the bar under Article 20(2) of the Constitution would not be available (See State of Bombay v. S. L. Apte : AIR 1961 SC 578).
46. Article 20(2) of the Constitution postulates the doctrine of double jeopardy. The objective of this Article is to avoid harassment, which may be caused by successive criminal proceedings, where the person has committed only one crime.
W.A.No.558 of 2021 25The principle is that no man shall be put twice in peril for the same offence. Constitution bars double punishment for the same offence. The conviction for an offence does not bar subsequent trial and conviction for another offence and it does not matter even if some ingredients of the two offences are common.
47. The same set of facts can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the Indian Penal Code and at the same time constitute an offence under any other law (See State of Bihar v. Murad Ali Khan: AIR 1989 SC 1).
48. The test is to ascertain whether two offences are the same and not the identity of the allegations but the identity of the ingredients of the offences. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they do not form the same offence (See Monica Bedi v. State of A.P : (2011) 1 SCC
284).
49. In the instant case, the doctrine of double jeopardy has got no application. In the first place, the petitioner has only been discharged in the previous case. In the second place, the prosecution against him in the instant case is for entirely different offences and not for the same offence. Principle of Issue Estoppel
50. The principle of issue estoppel is also known as 'cause of action estoppel'. It is different from the principle of double jeopardy. This principle applies where an issue of fact has been tried by a competent court on a former occasion, and W.A.No.558 of 2021 26 a finding has been reached in favour of an accused. Such a finding would then constitute an estoppel, or res judicata against the prosecution but would not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact already recorded when the accused is tried subsequently, even for a different offence. Thus, the rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence, arising out of a transaction, a trial has taken place and the accused has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial, is prohibited by the rule of issue estoppel. In order to invoke the rule of issue estoppel, not only the parties in the two trials should be the same but also, the fact in issue, proved or not, as present in the earlier trial, must be identical to what is sought to be re-agitated in the subsequent trial (See Ravinder Singh v. Sukhbir Singh: AIR 2013 SC 1048).
51. In Masud Khan v. State of Uttar Pradesh : AIR 1974 SC 28, it is stated as follows:
"The principle of issue estoppel is simply this : that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried W.A.No.558 of 2021 27 subsequently, even for a different offence which might be permitted by law".
52. The principle of issue estoppel has no application here. The doctrine is only concerned with the admissibility of evidence designed to upset a finding recorded by a competent court in a previous trial. That stage has not reached in the present case.
Immunity Under Judges (Protection) Act
53. Learned counsel for the petitioner contended that the petitioner was a public servant exercising quasi-judicial functions under the KVAT Act and Ext.P1 FIR relates to acts done by him in the course of discharge of such functions and therefore, he is entitled to get immunity under the Judges (Protection) Act, 1985.
54. Section 2 of the Judges (Protection) Act, 1985 states that, "Judge" means not only every person who is officially designated as a Judge, but also every person- (a) who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or (b) who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in clause (a).
55. Section 3(1) of the Judges (Protection) Act, 1985 provides that, notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him W.A.No.558 of 2021 28 when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. Section 3(2) of the aforesaid Act provides that, nothing in sub-section (1) shall debar or affect in any manner, the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal or departmental proceeding or otherwise) against any person who is or was a Judge.
56. It eludes comprehension how the petitioner is entitled to get immunity under Section 3 of the Judges (Protection) Act, 1985 for an act, which is not official or judicial, allegedly done by him. Accepting bribe cannot be considered as an act done by the petitioner in the course of discharge of his official or judicial duties or functions. Therefore, the petitioner is not entitled to get any immunity under the Judges (Protection) Act, 1985.
57. In H.H.B.Gill v. The King : AIR 1948 PC 128, it is stated as follows:
"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act : nor does a government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office".W.A.No.558 of 2021 29
The passage above would answer the contention of the petitioner that the acts done by him were in discharge of his official duties and functions."
12. Therefore it is vivid and clear that the learned Single Judge had considered the issues raised by the appellant rightly and in accordance with law. Deducing the facts, circumstances, and the law, we are of the considered opinion that the appellant has not made out a case of jurisdictional error or other legal infirmities, justifying this court to interfere in the judgment of the learned single in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958.
In the light of the above, writ appeal is dismissed.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
S.Manikumar Chief Justice Sd/-
Shaji P.Chaly Judge vpv /TRUE COPY/ P.A. TO JUDGE