Jharkhand High Court
Bishnu Dayal Gupta @ Vishnu Dayal Gupta & ... vs State Of Jharkhand on 17 January, 2011
IN THE HIGH COUT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 222 of 2010
1. Bishnu Dayal @ Vishnu Dayal Gupta
2. Naresh Kumar Gupta ....... Petitioners.
Versus
The State of Jharkhand ............ Respondent.
CORAM: HON'BLE MRS. JUSTICE POONA,M SRIVASTAV
For the petitioners : Mr. Sujit Narayan Prasad & Birendra Burman, Advocate.
For the Respondent : J.C. to S.C.III
Reserved on 2nd December, 2011 Delivered on 17th / January, 2012.
05/ 17 /01/2012: The instant writ petition is preferred challenging the entire
criminal proceedings arising out of Bistupur P.S. Case No. 251 of 1995,
corresponding to G.R. No. 2544 of 1995. The offences alleged are under sections
379,420,406,471 and 120B I.P.C. but cognizance was taken by the Chief Judicial
Magistrate, Jamshedpur, under sections 379,406,467,475 and 120B I.P.C. on
18.5.2009, which is impugned.
2. At the very outset learned counsel appearing on behalf of the petitioners has brought to my notice that a case for transfer of the proceedings under section 407 Cr.P.C. was moved in Cr. Misc. Case No. 5460 of 1996(R), praying for transfer of G.R. Case No. 974 of 1996 from the Court of Chief Judicial Magistrate, Ranchi to the Court of Chief Judicial Magistrate, Jamshedpur and G.R. No. 2544 of 1995, but the same was dismissed as withdrawn.
3. According to the facts of the case number of 'F' forms were misplaced/ stolen from the office of the Commercial Tax Department between the periods commencing from 4th September, 1988 to 30th May, 1989. The forms of 'D' series allegedly stolen from the office of the Assistant Commissioner (IB) Jamshedpur found their way into the market under circulation. The usage of the said forms resulted in loss of revenue and State exchequer. F.I.R. was registered in the district of Ranchi police station Kotwali vide Case No. 163 of 1996 (Annexure-4 to the memo of petition). The numbers of 'F' forms mentioned in different series including 'F' forms of 'D' series.
2
4. The details regarding which proceedings are in progress at Ranchi are enumerated in the chart here in below:
Sl.No. Sl. No. of F The businessmen Price Remarks
forms outside the State in
whose favour it has
been issued.
1. 89-90/D-1761 M/s Rajadhiraj & 4,73,200/- Not issued
50 Shivani/Dalsda from the
office
2. 89-90/D-2505 - do- 2,38,000/- -do-
93
3. 89-90/D-4501 - do- 5,93,236/- Jamshedpur
19 Anchal office
(theft)
4. 89-90/D-4501 - do- 4,18,100/- -do-
21
5. 89-90/D-4500 - do- 2,20,2000/- -do-
96
6. 89-90/D-4501 - do- 5,73,600/- -do-
19
7. 90-91/D-4500 - do- 11,97,000/- -do-
94
8. 90-91/D-4500 - do- 14,89,800/- -do-
95
9. 91-92/D-2121 - do- 9,73,166/- Not issued
99 from the
office
10. 91-92/D-1049 - do- 1126,246/- -do-
28
11. 91-92/D-1049 - do- 12,97,122/- -do-
72
12. 91-92/D-1049 - do- 37,57,201/- -do-
27
13. 91-92/D-4500 - do- 5,73,600/- -do-
85
14. 91-92/D-1138 M/s Bishanchand & 6,32,100/- -do-
84 Company Oil &
Vanaspati
15. 93-94/D-4302 M/s Modi Vanaspati 2,87,400/- -do-
14 Manu. Co. Modi
Nagar/ Vanaspati
16. 93-94/D-4302 -do- 8,44,200/- -do-
13
17. 93-94/D-4302 -do- 8,50,050 -do-
12
5. The occurrence in connection with Kotwali Police Station Case No. 163 off 1996 Ranchi (G.R. No. 974 of 1996) related to the year in between 1989 to 1994, which was registered in respect of offences under sections 3 420,406,467,468,471,379 and 120B I.P.C. as also under sections 49(1)(b),49(2) and 49(3) of the Bihar Finance Act .
6. Subsequently another case was instituted in the district of Jamshedpur being Bistupur Police Station Case No. 251 of 1995, corresponding to G.R. No. 2544 of 1995 for the alleged theft of 'F' forms of 'D' series bearing Nos. D-450119, 450121, 450096, 450085, 450094 and 450095 and a first information report was instituted in respect of the said forms on 18.6.1996. The proceedings pursuant to the case instituted at Jamshedpur are under challenge in the present petition. Thus, these six 'F' forms bearing 'D' series are the subject matter of First Information Report.
7. The entire controversy in the instant writ petition relates to the question that one proceeding was initiated at Ranchi, which is continuing and during its continuation another F.I.R. relating to the 'F' forms of 'D' series i.e. same forms allegedly stolen at the relevant time is alleged in the subsequent proceedings. The allegation is that investigation continued and after a considerable lapse of time forms were detected in the market used in respect of the goods of the petitioners. The proceedings in respect of 'F' forms at Ranchi are still continuing and according to the petitioners, which is not disputed by the respondent, is almost at its fag end and evidence is likely to be closed. Subsequent criminal proceedings arising out of Bistupur P.S. Case No. 251 of 1995 corresponding to G.R. No. 2544 of 1995 registered under sections 379,420,471,120B I.P.C. once again commenced and is under challenge in the instant writ petition. The police has completed investigation, submitted charge sheet and cognizance has been taken. The grievance of the petitioner is that subsequent proceeding initiated is for the same set of evidence, same set of facts and documents and also relates to one and the same forms bearing same numbers of 'F' forms of 'D' series, whereas the case at Ranchi bearing G.R. No. 974 of 1996 is almost at its conclusion. Thus, the petitioners are being subjected to two parallel proceedings for same 'F' forms of 'D' series, but by a 4 different police station viz Bistupur P.S. Case No. 251 of 1995, which is also subject matter of G.R. No. 974 of 1996 in the Court of the learned Chief Judicial Magistrate, Ranchi. It is emphatically argued that the Constitution ensures that a citizen of the country can not be tried and punished twice for the same offence. Article 20 (2) of the Constitution of India deals with "doctrine of double jeopardy". It bars prosecution twice. This provision contemplates that in the event an order of punishment has been passed earlier then at a subsequent stage proceeding cannot be initiated for a second time. Evidently in the proceedings initiated and continuing at Ranchi the punishment order is yet to be passed. However, the proceedings commenced, subsequently pertains to the 'F' forms serial numbers 89-90/D-450119, 89-90/D-450119, 89-90/D-450119, 89-90/D-450119, 90-91/D-450094 and 90-91/D-450095. Admittedly these 'F' forms bearing same numbers are subject matter of G.R. Case No. 974 of 1996. The word 'prosecution' though would not cover any departmental proceeding, but obviously will include criminal proceedings. It is ruled by various High Courts as well as the apex Court that the word 'prosecution' in Article 20 (2) of the Constitution denotes and means that successive criminal proceeding in respect of one crime should not be permitted. Every citizen has a right to live and this right includes right of peaceful living and, therefore, Article 20(2) of the Constitution is to avoid harassment of a citizen from multiplicity of criminal proceeding in respect of single incident, same charges and same set of evidence. The apex Court in the case of T.T. Antony V. State of Kerala and others, AIR 2001 Supreme Court 2637 ruled that there can be no second F.I.R. in respect of same cognizable offence, same incident or occurrence. Since there can be no second F.I.R. 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. The offence on receipt of the F.I.R. is entered into station diary and the officer In-charge of the concerned police station investigates the offence and also connected offences found to have been committed by the 5 court of the same transaction or same incident and finally a report under section 173 Cr.P.C. Is submitted. The law does not contemplate several police reports u/s 173 Cr.P.C. In respect of a single occurrence. There can not be multiple investigations by different police stations. While quashing the subsequent proceeding, Apex Court held in paragraph 27 of the aforesaid decision:
"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 Cr.P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narangs' case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the seeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under section 173 (2) Cr.P.C. it would clearly be beyond the purview of sections 154 and 156 Cr. P.C. may, a case of abuse of the statutory power of investigation in a given case. In our view a case of a fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under section 482 Cr.P.C. or under Article 226/227 of the Constitution"
.
8. The same view was followed in the case of Upkar Singh Versus Ved Prakash and another 2004 Cr.L.J. 4219.
9. The next submission of the learned counsel is regarding the offences alleged in the proceedings. The cognizance is taken by the Court under sections 420,406,467,468,471,379 and 120B I.P.C.
10. Learned counsel contends that no F.I.R. was registered against the petitioners at the relevant time when the forms were found missing. It is also not clear that whether any report was lodged regarding missing forms in the year 1988-89 when it was actually detected that forms were stolen. The name of the 6 petitioners came to light when the forms were detected in the open market after a lapse of long period.
11. I am in agreement with the submission made by the learned counsel regarding the instant prosecution, which is the subject matter of the writ petition being those very six 'F' forms of 'D' series, which are subject matter of the proceeding continuing at Ranchi. The subject matter of the F.I.R. vide Bistupur P.S. Case No. 251 of 1995 relates to 'F' forms of 'D' series bearing nos. D-450119, 450121, 450096, 450094 and 450095. Evidently the petitioners are facing two trials simultaneously and submission of the learned counsel is that they are being subjected to double jeopardy, which is against the Constitution. Both the Courts have taken cognizance at Ranchi as well as Jamshedpur, since charge sheet has been submitted. It is also brought to my notice that the proceedings at Ranchi i.e. G.R. No. 974 of 1996, the trial is at its fag end. The prosecution witnesses are now likely to be closed, whereas the charge in respect of Bistupur P. S. Case No. 251 of 1995, corresponding to G.R. No. 2544 of 1995, is yet to be framed. Evidently 'F' forms of 'D' series, which are allegedly prepared at the instance of the petitioners being misused for committing an offence, has already been examined at Ranchi and once those forms were used in a transaction, it cannot be considered that the same numbered forms were repeatedly used at subsequent stage. In my view even if those very forms were used to commit offences, the police should have got a "further investigation "done under Section 173 (8) Cr.P.C. in the case pending at Ranchi vide G.R. Case No. 974 of 1996. A single offence cannot be investigated repeatedly by different police stations. If this is permitted it will result in a situation which the Code of Criminal Procedure does not permit. Such a situation will lead to unprecedented results.
12. In my view proceedings commenced at the instance of Bistupur Police station is therefore, violaltive of Constitution as well as the legal procedure provided by the Code of Criminal Procedure. No doubt the order of conviction or sentence is 7 yet to be recorded, but since Ranchi trial is going to be concluded, the petitioners cannot be subjected to a fresh trial on the basis of second F.I.R. at Jamshedpur and thus, repeated trials by instituting subsequent report in different district of the State.
13. Learned counsel submits that there was no entrustment of the said forms to the petitioners. There is no allegation that the petitioners tried to induce any one to part with the certain goods in lieu of the alleged stolen forms and in absence of any allegation that the said forms were fabricated or concocted the offences alleged prima facie at the outset is not made out. The ingredients of offences u/s 379,406,467 and 475 I.P.C. are completely missing. There is no allegation of conspiracy to constitute an offence u/s 120B I.P.C. Thus, it is a case which is without any prima facie evidence. There is nothing to connect the petitioners with the offences or any allegation that the forms were stolen or misappropriated by the petitioners or at their instance. Certain transaction of the goods alone cannot substantiate the involvement of the petitioners and therefore the criminal prosecution is liable to be quashed in view of principles laid down in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, A.I.R. S.C. page
604. The apex Court carved out seven categories where prosecution or First Information Report can be quashed under Article 226 of the Constitution or u/s 482 Cr.P.C. The seven categories are:
1. Where the allegations made in the First Information Report 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. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted 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.8
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where 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 and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge".
14. Thus, the submission on behalf of the petitioners that the offences alleged are not made out prima facie on a bare reading of the First Information Report or the charge sheet submitted by the police under section 173 Cr.P.C.
However, this question is subjudice in the Ranchi Court, I am not inclined to give my opinion whether the ingredients are sufficient to constitute the offence.
15. It is, however, correct to say that the second proceedings at Jamshedpur or any other subsequent proceedings for the same set of facts and documents cannot be continued being unconstitutional and, therefore, the proceedings in respect of police station Bistupur are definitely liable to be quashed.
16. In the facts and circumstances and what has been stated in the foregoing paragraphs, the writ petition is allowed. Proceedings in respect of Bistupur P.S. Case No. 251 of 1995, corresponding to G.R. No.2544 of 1995, pending in the Court of the learned Chief Judicial Magistrate, Jamshedpur , are hereby quashed.
(POONAM SRIVASTAV,J) Sharma/