Gauhati High Court
Dipu Dutta vs The State Of Assam on 18 November, 2020
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/18
GAHC010039282017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./741/2017
DIPU DUTTA
S/O- LATE LAKHIKANTA DUTTA, R/O- AMGURI TOWN, P.O AND P.S-
AMGURI, DIST- SIBSAGAR, ASSAM.
VERSUS
1. THE STATE OF ASSAM
2:MOHAN CH. BORO
Advocate for the Petitioner : Mr. K.N. Choudhury, Sr. Counsel,
Mr J Patowary,
Ms. D. Deka,
Ms. R. Deka and
Ms. M. Mahanta.
Advocate for the Respondent : Mr. N. K. Kalita, Addl. P.P., Assam.
Mr. P.N. Goswami and
Ms. M.D. Borah
AND
Crl.Pet./541/2017
DEBAJIT DAS
Address:S/O LATE DHARANI DHAR DAS
PRESENTLY SERVING AS THE I/C CHIEF ENGINEER
GUWAHATI METROPOLITAN DEVELOPMENTAL AUTHORITY
R/O HOUSE NO.1
ELORA PATH
BYE LANE OF AJANTA PATH
SURVEY
Page No.# 2/18
BELTOLA
GUWAHATI-28
VERSUS
1. THE STATE OF ASSAM .
2:SRI MOHAN CH. BORO
Address:LATE M.R. BORO
R/O RESIDENT OF PUB SARANIA
BYE LANE NO.2
GUWAHATI-781003
------------
Advocate for the petitioner: Mr. A.M. Bora, Sr. Counsel,
Mr. D.K. Baidya,
Ms. C. Choudhury and
Mr. D. Gogoi.
Advocate for the respondents: Mr. N. K. Kalita, Addl. P.P., Assam.
Mr. N. Dutta, Sr. Advocate,
Mr. P.N. Goswami and
Ms. J. Kalita.
BEFORE
HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN
JUDGEMENT AND ORDER (ORAL)
18.11.2020 Both the two petitions filed under Section 482 read with Section 401 of the CrPC, are taken up together for hearing and disposal, as it relates to the same subject and sought for quashing of the second FIR dated 06.06.2016, on the basis of which the Dispur P.S. Case No.1311/2016, under Section 120(B)/466/468/406 of the IPC and also the charge sheet in GR Case No. 6297/2016.
2. Heard Mr. A.M. Bora, learned senior counsel appearing for petitioner Debajit Das in Crl. Petition No.541/2017, Mr. J Patowary, learned counsel appearing for petitioner Dipu Dutta in Page No.# 3/18 Crl. Petition No.741/2017 and. I have also heard the submission of Mr. N.K. Kalita, learned Addl. Public Prosecutor, Assam representing the State respondent. However none is present today to represent the case of respondent No.2.
3. The case of the petitioner, Debajit Das in the Crl. Petition No.541/2017, is that he joined the PWD of Govt. of Assam as an Assistant Engineer (Civil) in the Dhubri Border Roads Division on 13.09.1996 and Mr. Das was promoted to the post of Assistant Executive Engineer (AEE) in the year 2002, along with some others. Thereafter, he was promoted to the ex-cadre post of Executive Engineer (EE) with prior approval and concurrence of the Personnel and Finance Department in the year 2005. On the basis of the selection board held on 27.07.2005, the petitioner was en-cadred and promoted to the post of EE. The said encadrement was made by adhering to the pre-conditions laid down by the Personnel Department and the said recommendation of selection board was approved by the Minister, PWD as well as the Governor of Assam vide notification No. COM.39/2001/PT170 dated 03.08.2005. Pursuant to the said encadrement, the then Commissioner and Special Secretary to the Government of Assam, PWD, himself was pleased to fix the petitioner's inter-se-seniority in the cadre of EE (Civil), PWD on 07.10.2005. Further in the year 2011 and 2014, departmental authorities issued necessary notification, publishing final inter-se-seniority of EE, wherein the petitioner's name was figured at Serial No. 52 and there was no objection regarding such fixation of inter-se-seniority from any corner. Subsequently, the selection board recommended the promotion of the petitioner to the post of Superintending Engineer (SE), by virtue of its meeting dated 17.10.2014.
4. Assailing the legality of the encadrement of the petitioner as EE, three writ petitions were filed in the year 2013, vide WP(C) No. 7/2013, WP(C) No. 911/2013 and WP(C) No. Page No.# 4/18 114/2013 and one another WP(C) No. 4293/2014 was filed in the year 2014. In the meantime, on 24.01.2014, a complaint was submitted by one Dilip Baishya and Anuj Saikia (without revealing their status and address) to the Chief Secretary to the Government of Assam, Dispur, showing annoyance of APWD Engineers, to the alleged undue promotion in favour of Debajit Das to the post of EE. In the said complaint, two prime grievances were raised, firstly, that Debajit Das got himself promoted repeatedly from the rank of Assistant Engineer to the post of EE, within a short span of time, superseding 500 graduate engineers, which has demoralized the other graduates and secondly, it was alleged that some corrupt officials of PWD, by unfair means, have promoted him by formulating norms of their own, and a false gazette notification has been shaped in this regard. The said complaint was forwarded by the Commissioner & Secretary to the Government of Assam to the Additional Director General of Police, CID and the same was registered as CID PS Case No. 8/2015. Investigation was accordingly carried out and at the conclusion, Final Report was submitted by the IO, on 11.01.2016, on the following grounds:-
Ø The complainants of the case could not be traced out and said Dilip Baishya and Anuj Saikia are anonymous and in terms of the guidelines of the department of Personnel and Trainings, OM No. 104/76/2011-AVD.1 dtd.18.10.2013, Government of India, Ministry of Personnel and Public Grievances and Pensions, New Delhi, conveyed by the Government of Assam, vide ABP. 169/2014/5 dated 09.04.2014, no action is required to be taken on anonymous complaint, irrespective of nature of allegations. Ø During investigation, it was found that such allegation was also made to the Hon'ble Chief Minister by the Engineers' Service Association PWD, and the Page No.# 5/18 Hon'ble Chief Minister also directed the Additional Chief Secretary, Government of Assam to cause an enquiry into the allegations.
Ø So far as the promotion of the petitioner is concerned, official documents were verified and it was found that there are relevant documents/notification issued at the time of such promotion and such a promotion was given on the strength of the recommendation of the selection board under the chairmanship of Secretary, PWD, Chief Engineer, PWD (Building and Roads) as well as Joint Secretary, Personnel Department. A select list of officers for promotion to the rank of EE has been issued vide Government notification No. CON.39/2001/Pt/176, dated 07.09.2005 on the recommendation of the selection board and the same was approved by the Hon'ble Minister, PWD, Assam.
Ø The case of promotion of the petitioner Debajit Das is a matter of purely departmental concern and the promotion given to the petitioner was notified to the concerned officials of AG and the Government Press for publication and no foul play was found against Sri Debajit Das regarding his promotion. Ø So far as regards the Gazette notification dated 28.12.2005 at Page-400, the enquiry was made into the office of the Director of Printing and Stationery, Government Press, Assam and they submitted a report that the particulars of the original documents could not be traced out as the matter of publication is of 10 years back, but they never stated that the aforesaid Government notification was never published, but only the same could not be produced as Page No.# 6/18 the original could not be traced out.
Ø Non-publication of Gazette notification does not mean that his promotion order is not legal. Case was found to be false and the complainant is a anonymous one. So, no case is made out against Debajit Das.
5. The aforesaid Final Report was notified to the informant, but as the informants did not turn up to file their objections, the same was accepted by the learned CJM, Kamrup, on 22.04.2016.
6. It may be recalled that the CM has already directed an enquiry by the Additional Chief Secretary, Personnel Department on the basis of allegation of Assam Engineers' Service Association on the same set of allegations regarding undue benefit of promotion to Debajit Das and false publication of Gazette notification (the same allegation is in the first complaint). The Enquiry Officer, in his report, stated that it would not be possible on his part to ascertain the allegation of forgery and recommended handing over the matter to the Police to investigate. The then Commissioner and Secretary, PWD, Mr Mohan Chandra Boro, lodged an FIR before the Commissioner of Police, Guwahati City, on 17.01.2015, as per the opinion of the Enquiry Officer. Accordingly, Dispur PS Case No. 1311/2016, under Sections 120 B/466/468/406 IPC was registered and after conclusion of the investigation, the IO submitted charge sheet against Jadav Krishna Hazarika, Dipu Dutta, Jatindra Nath Sarma and Debajit Das. The learned trial Court took cognizance of the offence accordingly on the basis of the charge sheet so filed and issued summons to all the accused persons named above. Two of the petitioners, namely, Debajit Das and Dipu Dutta are now before this Court, challenging the second FIR as well as the entire proceeding pertaining to the aforesaid case, which has Page No.# 7/18 been registered as GR Case No. 6297/2016, on the ground that Ø The second FIR is baseless and has been lodged with malicious intention and with a vindictive mind, to harass the petitioner, whereas, earlier detailed investigation has completely negated the complicity of the petitioner with any sort of allegations.
Ø It is a settled proposition of law that the second FIR on the same set of allegations is not maintainable and the said proposition of law has been settled by the Hon'ble Supreme Court in a catena of decisions, wherein, it has been held that there can be no fresh investigation on receipt of each and every subsequent information of some cognizable offence or occurrence. Ø On the basis of the first FIR, the due investigation was made and the Final Report was submitted and as soon as it was accepted by the Court of competent jurisdiction it reached finality and as such, the second FIR is liable to be quashed and set aside.
Ø So far as the further investigation is concerned, it can be permitted if further materials come into the picture, but the same has to be done by due process of law. Moreover, re-investigation is not permitted without leave of the superior Court of law. By thwarting all such legal provisions, the respondent authorities carried the investigation in the most mechanical way, pursuant to the second FIR, whereas, earlier FIR culminated into the Final Report.
Ø Irregular activities of respondent No. 2/informant, who is the Head of the Page No.# 8/18 Department, stated to have indulged in vindictive manner towards the petitioners. It has been pointed out that the same respondent/informant in his affidavit filed in WP(C) No. 7/2013 (referred above), has categorically admitted about the due publication of the promotion of petitioner Debajit Das and its publication in official gazette dated 28.12.2005 and the same informant has lodged the present FIR, which is contrary to his own admission.
Ø The registration of the second FIR and the submission of charge sheet is stated to be wholly illegal and arbitrary despite acceptance of Final Report on the same set of accusations and it has caused grave and serious prejudice to the petitioners, which warrants interference by the Court. Ø The Court of law cannot be employed as a forum for projecting personal vendetta with malafide intention to harass innocent persons.
7. So far as the case of the petitioner Dipu Dutta in Crl. Petition No.741/2017 is concerned, he joined in the PWD of Govt. of Assam on 15.09.1986, as an Assistant Engineer (Civil) and is much senior to the other petitioner, Debajit Das, who joined in the same department on 13.09.1996. The petitioner was promoted to the post of AEE, on 15.07.2001, whereas, Debajit Das was promoted to the post of AEE in the year 2002 and the same was reflected in the inter-se-seniority list of the department. In the meantime, Debajit Das was allowed to officiate as EE, PWD, RDQP Cell, by the notification No.RBEB.34/2005/3, dated 02.04.2005. The said promotion was made against ex-cadre post of EE, PWD, vide Letter No. RBAB.34/2005/2 dated 2.04.2005, with approval and compliance of the Personnel and Page No.# 9/18 Finance Department. The selection board meeting held on 27.07.2005, promoted Debajit Das to the rank of Executive Engineer and subsequently encadred vide Notification No. CON.39/2001/Pt/176, dated 07.09.2005 . As the said Debajit Das was much junior to the petitioner Dipu Dutta and challenging his promotion in illegal manner, the petitioner filed WP(C) No. 4293/2014 before this Court, which, however, was dismissed in lemine on the ground of delay and laches in challenging the matter of promotion granted far back in the year 2005.
8. He has also admitted about the other litigations filed vide WP(C) No. 7/2013 WP(C) No. 911/2013, and WP(C) No. 1114/2013, by the other employees, challenging the legality and validity of the encadrement of Sri Debajit Das as EE and that encadrement of petitioner was not notified in the official Gazette. But, in this respect, the respondent/informant has admitted in his affidavit about the encadrement of Debajit Das and publication of same in the Gazette Notification dated 28.12.2005. By the time, the petitioner preferred WP(C) No. 4393/2014, the same was already brought fore by the informant in the affidavit so filed in WP(C) No. 7/2013. It is further stated that alleging commission of fraud in issuing the encadrement Notification No. CON.39/2001/Pt/176, dated 07.09.2005, and Gazette notification dated 28.12.2005, an FIR was lodged, which was registered as CID Case No. 8/2015 and during investigation, it came to light that the informants, who lodged the FIR are anonymous entity, which resulted in submission of Final Report by the investigating agency and as soon as the Final Report was accepted by the CJM, Kamrup (M), without objection, the same has attained finality. But, at the behest of some of the officers under the banner of Federation of Engineering Service Association, lodged another FIR, incorporating the name of the petitioner along with others, alleging fraud in issuing the Gazette Notification (aforesaid), Page No.# 10/18 by suppressing the outcome of the earlier FIR. It is contended that the petitioner himself in his writ petition, challenged the said notification, alleging it to be a forged one. Under the circumstances, it has been submitted that further investigation of the same aspect and subsequent filing of charge sheet and cognizance taken by the learned trial Court is stated to be bad in law, as there are no materials to show the commission of the offence by the present petitioner Dipu Dutta, in conspiracy with other accused/petitioner.
9. Mr Bora, learned senior counsel appearing for and on behalf of the petitioner, Debajit Das, has vehemently argued that such a subsequent FIR exactly on the same sort of allegations, is not at all maintainable in law and the Final Report has been submitted after due investigation thoroughly, holding that the petitioner, Debajit Das was duly promoted by the selection committee and such matter of promotion is of purely departmental concern; the petitioner cannot be roped with any of the offence alleged and he is the beneficiary of such official act. Referring to the finding of the IO in the Final Report, it has been urged before the Court that no any foul play on the part of the petitioner was found during the entire investigation and only because of non-publication of Government notification, his promotional order cannot be held to be illegal. It is contended that publication of Gazette notification is not a pre-condition for granting promotion and the report of the Government Press indicates that the document was misplaced, but not of total denial. As soon as the Final Report was accepted without any objection, it has already attained finality. So, the subsequent FIR is non-est in the eye of law.
10. Regarding the proposition of law as regards the second FIR, it has been submitted by the learned Senior Counsel, Mr Bora that the Hon'ble Supreme Court has consistently laid down the law that the second FIR in respect of an offence or different offence in the course Page No.# 11/18 of same transaction is not only impermissible but also violative of Article 21 of the Constitution of India. Since the decision of T T Antony -Vs- State of Kerala; reported in (2001) 6 SCC 181, the said principle is consistently followed in all the subsequent decisions. In this context, the decisions of Amitbhai Anil Chandra Shah -Vs- Central Bureau of Investigation; reported in (2013) 6 SCC 348 and Anju Chaudhary -Vs- State of Uttar Pradesh; reported in (2013) 6 SCC 384, have been referred, wherein it has been held that Police Officer is bound to register the FIR, but not the second FIR in respect of same offence/incident, forming part of same transaction as contained in the first FIR. Further, it is held that inbuilt safeguard provided under CrPC, are principles akin to double jeopardy to fair investigation and prevention of abuse of power by investigating agency. It has been argued that the declaration of the law laid down above in the aforesaid decision has not been diluted in any subsequent judicial pronouncements even while carving out exceptions. We will discuss the decisions relied at a subsequent stage.
11. Mr J Patowary, learned counsel appearing for and on behalf of petitioner Dipu Dutta, also adopted the argument advanced by Mr Bora, learned Senior Counsel and has added further that the petitioner Dipu Dutta at an earlier point of time being aggrieved with the promotion of the petitioner Debajit Das, who is junior to him has himself challenged his promotion as well as the notification in this regard by filing a writ petition (which, however, was dismissed by the Court). That being so, he cannot be a co-conspirator as has been submitted in the charge sheet to attract the offence under Section 120 (B) IPC, nor has he forged any document to attract the other offences as highlighted in the present FIR or the charge sheet. Further, submissions of Mr Patowary is that the present FIR on its face value does not constitute a cognizable offence and has been filed on the personal grudge of the Page No.# 12/18 informant. Reliance has been placed on the decision of State of Haryana -Vs- Bhajan Lal; reported in 1992 Supp (1) SCC 335, where the Hon'ble Supreme court has elaborated the scope of Section 482 CrPC and the powers of the High Court to quash the criminal proceedings where:-
1) Allegations made in the first FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused
2) Allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
3) There is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings.
4) There is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
5) A criminal proceeding is manifestly attended with mala fide with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, the complaint and issuance of process is liable to be quashed.
Mr Patowary, the learned counsel for the petitioner, Dipu Dutta, submits that the case of the petitioner falls under the last category, as despite there being no any case against the petitioner, the FIR has been filed with mala fide with an ulterior motive for wreaking Page No.# 13/18 vengeance on the accused on personal grudge. In view of above and also the proposition of law, there cannot be any second FIR and secondly, there can be no fresh investigation on receipt of subsequent information in respect of some cognizable offence without due approval of the superior Court. He contends that the present FIR, including the charge sheet, is liable to be quashed and set aside, it contends.
12. It may be noted that the informant's side although at an initial stage entered their appearance and filed their affidavit, but none has appeared at the time of hearing. However, this Court has gone through the affidavit-in-opposition filed by the respondent No. 2/informant, Sri Mohan Chandra Boro. In his affidavit, the informant has basically contended that the petitioner was granted ex-cadre promotion beyond description of the Rules and submitted that some authorities of the Department having extraneous consideration tried to unduly favour the petitioner. Peculiarly, he has also admitted that selection committee recommended for promotion/encadrement of the petitioner, Debajit Das in the post of Executive Engineer, whereas, selection committee has no jurisdiction or authority under the Rules to consider encadrement of an ex-cadre post against vacancy. Although so much has been stated about the illegal affair conducted by the selection committee while conferring the inter-se-seniority upon the petitioner and promotion etc., but the content of such affidavit is not substantiated or pressed before this Court, as such, the same has become redundant and this Court has no option but to discard the same.
13. Let us have the glimpse of the first FIR as well as the second FIR. In the first FIR, the prime allegation is that the petitioner, Debajit Das was unduly promoted to the post of Executive Engineer, superseding other graduates and the gazette notification was shaped by him in connivance with the Secretary, PWD, Mr J N Sarma. In the second FiR, the informant Page No.# 14/18 again raised the same issue that the promotion of Debajit Das was irregular and it has been done by the selection board without authority and forgery has been committed in respect of Assam Gazette dated 28.12.2005. Apparently, there can be no denial that exactly on the same subject matter, the second FIR was initiated and at no point of time, the Final Report as regards the first FIR was challenged.
14. Even applying the 'test of sameness" it must be seen that the allegation in both the FIRs is exactly the same about getting undue promotion by the petitioner and falsification of gazette notification. Facts to be noted that the same informant appeared as respondent and filed the affidavit in WP(C) No. 7/2013, where, he has admitted about the publication of the Notification No. CON.39/2001/Pt/176, dated 07.09.2005 and its publication in official gazette dated 28.12.2005.
15. Now, let us appreciate the decision rendered in the case of T T Antony (supra). The conclusion drawn in paragraphs-19, 20 and 27 of the judgment, reads as under:
"19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC 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 the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. 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 CrPC.
Page No.# 15/18
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. 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. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR 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 CrPC.
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, 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 Page No.# 16/18 the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
16. Referring and relying on the decision above, in Amitbhai (supra), the Hon'ble Supreme Court has summed up various provisions of law in the following manner:-
"58.2. The various provisions of the Code of Criminal Procedure clearly show that an officer-in-charge of a police station has to commence investigation as provided in Section 156 or 157 of the Code on the basis of entry of the First Information Report, on coming to know of the commission of cognizable offence. On completion of investigation and on the basis of evidence collected, Investigating Officer has to form an opinion under Section 169 or 170 of the Code and forward his report to the concerned Magistrate under Section 173(2) of the Code.
58.3 Even after filing of such a report, if he comes into possession of further information or material, there is no need to 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 which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154,155, 156, 157, 162, 169, 170 and 173 of the Code, 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.
58.4 Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the Station House Diary, the officer-in-charge of the 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 Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report(s) to the Magistrate. 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, is liable to be interfered with by the High Court by exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution.
58.5 The first Information Report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is Page No.# 17/18 always in furtherance of the first FIR.
17. In Anju Chaudhary (supra), it has been held that where several offences are a part of same transaction, the "test of sameness" has to be applied, whether they are so related to one another on the point of purpose or cause and effect, so as to result in a one continuous action. It has been held that second FIR in respect of same offence forming part of same transaction as complained in the first FIR is not permissible. Commencement of the re- investigation after completion of previous investigation, pursuant to the first FIR and filing of report based on such investigation before the Court is not permissible. Further, it has been held that inbuilt safeguards provided under the CrPC are principles akin to double jeopardy, fair investigation and prevention of abuse of power by investigating agency.
18. Informant of the earlier FIR was anonymous and the present informant has himself admitted about the proper publication of the notification of the petitioner, Debajit Das in the impugned gazette notification dated 28.12.2005 and how he can again challenge such facts in the second FIR, where the earlier investigation has concluded that there was no such denial on the part of the concerned office about non-publication in the gazette, but about the misplace because of long delay. Moreso, Final Report was submitted on earlier occasion after long drawn investigation by the IO holding that the petitioner, Debajit Das was duly promoted by holding selection Board with consent and approval of the higher authority and he has no criminal liability towards such promotion as well as Gazette notification and the same aspect has attained its finality as no challenge has been made towards the Final Report.
19. Learned appellate Court in WA No. 138/2015, while adjudicating the same challenge has observed that the petitioner was the beneficiary of such undue favour of promotion and merely, because the petitioner takes the benefit of such favour, cannot be accused of manipulating or engineering the entire promotional process. The promotion in question to EE could be called as illegal but no fault can be attributed to the petitioner in the matter to attract a criminal liability. One cannot deny that promotion of an officer is granted after due procedure and one cannot get himself promoted, unless such procedure is exhausted.
20. Turning to the present case it is found that fresh investigation has been carried out on the basis of second FIR, without any order from the Court of law. The plenary power of the Police to investigate a cognizable offence is, however, not unlimited and subject to certain Page No.# 18/18 well-recognized limitations. Where the Police transgresses its statutory power of investigation, the High Court under Section 482 CrPC or Article 226 of the Constitution of India, can interfere into the matter to prevent the abuse of process of the Court and/or otherwise to secure the ends of justice.
21. As has been held in Amitbhai Anil Chandra Shah (supra), administering criminal justice is a two-end process, where guarding the ensured rights of the accused under the Constitution is as imperative as ensuring justice to the victim. It is definitely a daunting task but equally a compelling responsibility vested on the court of law to protect and shield the rights of both. Thus, a just balance between the fundamental rights of the accused guaranteed under the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. Accordingly, 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.
22. In view of clear proposition of law, the very registration of the second FIR and the entire investigation carried out on its basis, culminated into a blatant illegality and lacks the sanctity of law. I found sufficient force in the submission of the learned counsel for both the petitioners and constrained to hold that the entire proceeding pertaining to the second FIR is a nullity and requires to be interfered into by invoking the provision under Section 482 CrPC. Resultantly, the entire proceeding pertaining to GR Case No. 6297/2016, arising out of Dispur P.S. Case No.1311/2016, under Section 120(B)/466/468/406 of the IPC, pending in the Court of learned SDJM (S) No. 1, Kamrup, is hereby quashed and set aside.
23. Let the Case Diary be returned to the concerned Court. Both the petitions stand disposed of accordingly.
JUDGE Comparing Assistant