Jharkhand High Court
Md Quiyamuddin Khan And Company Through ... vs The State Of Jharkhand Through ... on 22 August, 2016
Equivalent citations: 2017 (1) AJR 599, 2017 AJR 599, (2016) 168 ALLINDCAS 433 (JHA) (2017) 1 JLJR 406, (2017) 1 JLJR 406
Author: R.N. Verma
Bench: Ravi Nath Verma
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P.No.2186 of 2015
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Md. Quiyamuddin Khan & Company through its Partner Quaser Khan,
son of Quiyamuddin Khan, Resident of B/Block, Dhatkidhi, P.O. &
P.S.Bistupur, Jamshedpur, District- East Singhbhum, Jharkhand
... ... ... Petitioner
Versus
The State of Jharkhand through Vigilance ... ... ... Opp. Party
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CORAM: HON'BLE MR. JUSTICE RAVI NATH VERMA
For the Petitioners : Mr. A.K. Kashyap, Sr. Advocate
Mr. Anurag Kashyap, Advocate
Ms. Supriya Dayal, Advocate
For the State : Mr. Shailesh Kumar Singh, Advocate
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C.A.V. ON: 19.05.2016 PRONOUNCED ON:- 22.08.2016
Invoking the inherent power of this Court under Section 482
of the Code of Criminal Procedure (in short „the Code‟) the petitioner-
company through its partner has moved this Court for quashing of the
entire criminal proceeding including the F.I.R. being Vigilance P.S. Case
No.20 of 2012 which was instituted under Sections 409, 420, 201, 109,
120B, 468 and 469 of the Indian Penal Code and also under Section 13(2)
read with Section 13(1)(c)(d) of Prevention of Corruption Act.
2. Bereft of unnecessary details, the facts which is relevant for
the proper adjudication of the issue involved in this case, in short, is that
on the basis of written report of one Ram Sagar, Deputy Director,
Welfare Department, Govt. of Jharkhand, the aforesaid vigilance case
was instituted with allegations that an area of 0.75 acres of Plot No.167
appertaining to Khata No.164 of Mouza-Kadri was transferred to the
Welfare Department for construction of Haj House at an estimated cost
of Rs.4,88,72,700/-. The work was handed over to be executed by the
Jharkhand State Housing Board. Whereafter the construction work was
started on 17.07.2007 but on 20.09.2009 when the casting of portico of the
Haj House was going on, the entire structure of portico collapsed
causing injury to nine labourers. Due to fall of the said portico, the
authority presumed that construction of Haj House was sub-standard
and irregularities have been committed by the engineers as well as
contractors. Thereafter, the State Government handed over the
2 CrM.P. No.2186 of 2015
investigation to Vigilance, who entrusted the inquiry to a Technical
Expert Committee and the said Committee after inquiry submitted the
report showing irregularity, negligence, lack of control over the
construction work and non-approval of Architectural Drawing. On the
basis of the said report, the aforesaid case was instituted as indicated
above showing this petitioner and others as accused.
3. It would be proper to mention here that for the same offence
one F.I.R. bearing Doranda/Argora P.S. Case No.371 of 2009 was earlier
instituted immediately after the collapse of the portico by one Belal Khan
as informant. However, during investigation of this case, the matter was
handed over to the State Vigilance, whereafter the Vigilance Case No.20
of 2012 was instituted on 12.09.2012. The Vigilance Department started
investigation based on the allegation made in the second F.I.R. and the
investigation is still pending. Hence, this criminal miscellaneous petition
under Section 482 of the Code for quashing of entire criminal proceeding
as well as the second F.I.R. lodged at the instance of Vigilance being
Vigilance P.S. Case No.20 of 2012.
4. Mr. Kashyap, learned senior counsel appearing for the
petitioner assailing the continuation of the criminal proceeding on the
basis of the second F.I.R. as bad in law seriously contended that the
investigating agency has to proceed only on the information about the
commission of cognizable offence which is first entered in the police
station diary under Section 154 of the Code and any subsequent F.I.R. or
second F.I.R. information given to the police would be covered under
Section 162 of the Code and so the continuation of the proceeding on the
basis of second F.I.R. is an abuse of the power of court. It was also
submitted that the duty has been cast upon the Investigating Officer not
merely to investigate the cognizable offence reported in the F.I.R. but
also include connected informations if found to have been committed in
course of same transaction and the second information cannot be treated
as an F.I.R. In support of his contention, learned counsel relied on T.T.
Antony Versus State of Kerala & Ors.; (2001) 6 SCC 181 and the case
Babubhai Versus State of Gujarat & Ors.; (2010) 12 SCC 254. Learned
senior counsel, Mr. Kashyap further contended that the petitioner was
3 CrM.P. No.2186 of 2015
not even contractor appointed by any agency for the construction of the
Haj House and even there is no document on record or any agreement or
chit of paper that any payment was ever made to the petitioner out of the
construction of the Haj House. It was also submitted that both the F.I.Rs.
are arising out of the same incidence and the only difference between the
two F.I.Rs. are that the first F.I.R. was lodged immediately after the
incident by a private person of the locality and the second F.I.R. was
lodged almost after three years at the instance of Department of
Vigilance. The second F.I.R. was lodged under Prevention of Corruption
Act besides the provisions of Indian Penal Code but none of the
provision of Prevention of Corruption Act has any application against
the petitioner as he is not a public servant. Further, relying upon
Annexure-2 letter of Principal Secretary, Welfare Department,
Government of Jharkhand enclosed with the rejoinder filed by the
petitioner submitted that entire admitted amount of Rupees One Crore
was sanctioned and given to the Jharkhand State Housing Board, Ranchi
for the construction of Haj House and even in enquiry report submitted
by Enquiry Committee which is Annexure-1 to the rejoinder, there is no
whisper about the name of this petitioner though the committee has
found several technical, architectural and structural defect and both the
F.I.R. cannot run together. As such lodging of the second F.I.R. on the
same allegations is not permissible in the eye of law and since it is not in
conformity with the scheme of Cr.P.C., it is fit to be quashed.
5. Mr. Shailesh, learned counsel appearing for the Vigilance,
per contra submitted that as the earlier F.I.R. was lodged at the instance
of private person and there was no any subsequent progress in the
investigation, subsequently the State Government decided to hand over
the investigation to Vigilance and the second F.I.R. was lodged at the
instance of Vigilance after preliminary enquiry. It was also submitted
that at the nascent stage of investigation when prima facie there is ample
material to show the complicity of the petitioner, merely on the basis of
the fact that two F.I.Rs. are there, the entire criminal proceeding as well
as the second F.I.R. cannot be quashed. Learned counsel further relying
upon the case Nirmal Singh Kahlon Versus State of Punjab & Ors.;
4 CrM.P. No.2186 of 2015
(2009) 1 SCC 441 wherein two F.I.Rs. were lodged first at the instance of
State Vigilance and second by C.B.I. submitted that when new
discoveries were made on factual foundations and larger conspiracy
came on surface, it was open to the State to direct investigation in respect
of an offence which is distinct and separate from the one for which F.I.R.
had already been lodged.
6. In the instant case, admittedly, two F.I.Rs. have been lodged.
First, at the instance of one private person of the locality, immediately
after the alleged incidence and the second F.I.R. was lodged at the
instance of the vigilance to whom the investigation work was handed
over subsequently by the State Government which was lodged against
several persons including the present petitioner for the offence under
Sections 409, 420, 201, 109, 120B, 468 and 469 I.P.C. and Section 13(2) read
with Section 13(1)(c)(d) of the Prevention of Corruption Act. Hence, in
that background, it is necessary to examine the rival contention raised
before this Court. A question has come up for consideration before this
Court whether the First Information Report lodged at the instance of the
private person and another by the Vigilance Department of the State
relates to the same cause of action? Here, I would like to discuss the two
F.I.Rs. A bare perusal of the first F.I.R. dated 21.09.2009 lodged at the
instance of informant Belal Khan bearing no.Doranda/Argora P.S. Case
No.371 of 2009, it would appear that the same was lodged under Sections
406, 420, 120B, 288 and 337/34 I.P.C. with the allegation that he is the
resident of Village Kadru in which the construction of Haj House was
going on by the contractor, Md. Quaser Khan and in the said
construction Government norms and estimates were ignored and several
irregularities were there in the construction work. The information
regarding irregularities were given to different authorities and also to
the Manager, who is looking after construction work but they always
ignored the grievances of the informant and other persons. It is also
alleged that on 20.09.2009 at about 4.45 p.m. he saw that casting of
portico of the Haj House was going on and almost 50-60 labourers were
working, suddenly the entire portico collapsed causing injuries to several
labourers. The said case was lodged against the accused persons namely
5 CrM.P. No.2186 of 2015
contractor- Md. Quaser Khan, petty contractor Md. Nadim, Assistant
Engineer, members of committee of Haj House. It was presumed that
construction of the Haj House was sub-standard. Pursuant to the said
F.I.R., the Investigating Officer proceeded to investigate and during
investigation of the said case the second F.I.R. was lodged implicating
Chief Engineer, Housing Board, Executive Engineer, Md. Sabbir Ali,
Assistant Engineer, Housing Board, Anurag Kumar, Junior Engineer and
the contractor- Md. Quiyamuddin Khan & Company, the petitioner
relying upon the report submitted by technical expert committee which
was made part of the second F.I.R. showing the involvement of the
accused persons including the petitioner. Undoubtedly, two F.I.Rs. have
been lodged with regard to the same incidence but the second F.I.R. was
lodged by the Vigilance Department considering the discovery of new
factual foundations and larger conspiracy part. Inspite of the offence
being serious, the earlier investigation was not being done with all
seriousness. Thereafter, vigilance took over the investigation after
getting a new case separately registered which discloses not only the
larger part of the conspiracy, misappropriation but also of forgery and
offences under Prevention of Corruption Act with new factual
foundation. In such a situation, lodging of second F.I.R. vis-a-vis
continuation of criminal proceeding cannot be said to be illegal and
abuse of process of the Court. In the case Nirmal Singh Kahlon (supra) as
cited by learned counsel for the Vigilance, the Hon‟ble Supreme Court
while considering almost a similar issue wherein the first F.I.R. was
lodged at the instance of the Vigilance Department of the State
Government and the second F.I.R. was lodged on the basis of a
notification issued by the State Government handing over the
investigation to C.B.I., held in Paragraph 67 of the said judgment as
follows:-
"The second F.I.R., in our opinion, would be
maintainable not only because there were different
versions but when new discovery is made on factual
foundations. Discoveries may be made by the police
authorities at a subsequent stage. Discovery about a
larger conspiracy can also surface in another proceeding,
as for example, in a case of this nature. If the police
6 CrM.P. No.2186 of 2015
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 F.I.R.
had already been lodged."
Similarly in Ram Lal Narang Versus State (Delhi
Administration); (1979) 2SCC 322, the Hon‟ble Supreme Court
considered a case wherein two F.I.Rs. had been lodged. The first one
form part of a subsequent larger conspiracy which came to light on
receipt of fresh information. Some of the conspirators were common in
both the F.I.Rs. and the object of conspiracy in both the cases was not the
same. The Hon‟ble Supreme Court while considering the question as to
whether investigation and further proceedings on the basis of both the
F.I.Rs. was permissible held as follows:-
„We are clear in the present case, that the conspiracies
which are the subject matter of the two cases cannot be
said to be identical though the conspiracy which is the
subject matter of first case may, perhaps, be said to have
turned out to be part of the conspiracy which is the
subject matter of the second case."
7. In the first F.I.R., though provision of conspiracy under
Section 120B I.P.C. has been alleged but in the second F.I.R. besides clear
allegation of larger conspiracy, provisions of Prevention of Corruption
Act has also been added which is based on a report of technical expert
committee. The canvass of the two F.I.Rs. is absolutely different and the
numbers of accused are also different and the subsequent F.I.R. includes
several engineers of different ranks also on the basis of larger conspiracy.
The Hon‟ble Supreme Court in the case Nirmal Singh Kahlon (supra)
considering the scope of the two F.I.Rs. held in Paragraphs 57 and 58 as
follows:-
57. The instant case, in our opinion, stands on a better
footing vis-à-vis Ram Lal Narang in the sense that
whereas the first F.I.R. did not make any allegation as
regards existence of a conspiracy, the second F.I.R. did.
The canvass of the two F.I.Rs. is absolutely different. The
numbers of accused in both the F.I.Rs. are also different.
7 CrM.P. No.2186 of 2015
58. We must also bear in mind the distinction between
crime committed by an individual or a group of persons
vis-a-vis a scam which means „to get money or property
from another, under false pretences, by gaining the
confidence of the victim, also includes swindle; defraud.
8. Admittedly, the name of the petitioner also came in the list of
accused persons in the second F.I.R. lodged at the instance of the
Vigilance Department and on perusal of the case diary of the Vigilance
Case No.20 of 2012, it appears that there are sufficient material to show
that huge amounts have been given to Md. Quaser Khan of M/s Md.
Quiyamuddin Khan & Company-the petitioner, in connection with the
work done in Haj House and the signature of Md. Quaser Khan is also
there on the payment receipts. It is also apparent from the case diary that
for construction of big brick flat, soiling, P.C.C. and R.C.C. work huge
amounts were made on different dates to the petitioner and the
witnesses during investigation have all supported the fact that
construction work was given to the petitioners company. So the
statements of the witnesses clearly make out a prima facie case in the
light of principles as laid down by the Hon‟ble Supreme Court in the
aforesaid decisions. It is also a fact that after institution of case by
vigilance, the entire records of the police case, have been transferred to
the file of Vigilance Bureau and the information to that effect has been
given to the vigilance court.
9. In another case Upkar Singh Versus Ved Prakash & Ors.
(2004) 13 SCC 292 the Hon‟ble Supreme Court considering the
conspiracy part in Paragraph 23 held as under:-
"Be that as it may, if the law laid down by this Court in
T.T. Antony‟s case, is to be accepted as holding that a
second complaint in regard to the same incident filed as a
counter-complaint is prohibited under the Code then, in
our opinion, such conclusion would lead to serious
consequences. This will be clear from the hypothetical
example given hereinbelow i.e. if in regard to a crime
committed by the real accused he takes the first
opportunity to lodge a false complaint and the same is
registered by the jurisdictional police then the aggrieved
victim of such crime will be precluded from lodging a
complaint giving his version of the incident in question,
consequently he will be deprived of his legitimated right
8 CrM.P. No.2186 of 2015
to bring the real accused to book. This cannot be the
purport of the Code.
10. In the preceding Paragraphs, I have discussed the settled
legal position and the ratio decided by the Hon‟ble Supreme Court.
There does not appear to be any illegality on the part of the vigilance to
lodge a fresh F.I.R. I have gone through the two judgments T.T. Antony
(supra) as well as Babubhai (supra) as cited by the learned senior
counsel for petitioner and I find that the facts of those two cases are
different from the facts of the instant case and as such the principles as
laid down in the above two cases have no application in the case at hand.
In the case of Babubhai (supra) the Hon‟ble Supreme Court considering
the facts of that case held in Paragraph 21 as follows:-
"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 counterclaim, investigation on both
the FIRs has to be conducted."
Hence, it is clear from above judgment also that the two
F.I.Rs. can continue at the same time in respect of the same incidence, if
contrary is proved. The facts of the case T.T. Antony (supra) is absolutely
different and after lodgment of the first case there was change in the
Government in the State and the second F.I.R. was lodged and
considering the facts and investigation report submitted in the two
F.I.Rs. of that case, the Hon‟ble Supreme Court quashed the subsequent
F.I.R. and directed the court concerned to follow the procedure as laid
down in Section 173 of the Code and if the court feels can direct for
further investigation of the case. On conjoint reading of the F.I.R. and the
case diary of the instant case, the part which I have discussed above, it
9 CrM.P. No.2186 of 2015
cannot be presumed that there is not legal acceptable evidence in
support of prosecution.
11. Apparently, the investigation is at its nascent stage and no
charge-sheet has been submitted even by the Vigilance. It is well settled
that quashing of F.I.R. at the very initial stage would tentamount to "kill
a still born child". The prosecution should not be stifled unless there are
compelling circumstances to do so. The investigation or the F.I.R. cannot
be quashed at the threshold if the allegation has any substance as held by
Hon‟ble the Supreme Court in Vinod Raghuvanshi Vs. Ajay Arora &
Ors; 2013 (10) SCC 581 in Paragraphs 30 and 31. In view of the
discussions made above, in my opinion, this is not the stage to quash the
second F.I.R. which is not impermissible in law.
12. The criminal miscellaneous petition, being devoid of any
merit, is hereby, dismissed. However, it will be open to the petitioner to
raise all the questions at an appropriate stage in the proceeding or
during trial.
(R.N. Verma, J.)
Jharkhand High Court, Ranchi
Dated, 22nd August, 2016
Anit/N.A.F.R.