Calcutta High Court
Monoranjan Mondal @ M.R. Mondal vs Union Of India (Uoi) And Ors. on 11 March, 2004
Equivalent citations: 2004(4)CHN233, 2005CRILJ1098
Author: Dilip Kumar Seth
Bench: Dilip Kumar Seth
JUDGMENT Dilip Kumar Seth, J.
1. The judgment and order dated 12th of February, 2004 passed by the learned Single Judge in W. P. No. 12086(W) of 1999 with CAN 712 of 2004 dismissing the writ petition is under challenge in this appeal. In the writ petition, the appellant had prayed for quashing of the First Information Report (FIR) dated 24th May, 1999 lodged against him.
Submission of the appellant:
2. Mr. Saktinath Mukherjee, learned Senior Counsel appearing on behalf of the appellant, made it clear that the challenge was not on the ground that the FIR does not make out a case but altogether on a different ground viz. that no proceeding can be taken or investigation can be undertaken except on the First Information Report viz. the report conveying the information for the first time to the investigating authority. An investigation initiated on the basis of a subsequent FIR is wholly incompetent. There cannot be successive FIR. There cannot be successive investigation or fresh investigation on the basis of successive FIR. Referring to the facts of this case, he pointed out that the first FIR or complaint was lodged by the respondent on 22nd October, 1998 through its letter of even date; a second on 31st of March 1999 and the third one on 24th of May, 1999. The investigation followed the third complaint dated 24th of May, 1999. He also refers to the mala fide apparent on the face of the records relying on the letter dated 24th of May, 1999, complaint dated 31st March, 1999 and letter dated 16th May, 2001 respectively at pages 239, 240 and 244 of the petition and pointed out that after the complaint dated 22nd of October, 1998, the C.B.I. addressed a letter to the respondent on 23rd of March, 1999. Referring to the, complaint lodged on 31st of March, 1999, the Chief Vigilance Officer (E) called for the interim report from the C.B.I, authority in order to utilize the report in connection with the civil cases pending before this Court between the parties. Therefore, it is on the basis of the instruction received from the C.B.I, through its letter dated 23rd March, 1999 the complaint dated 24th May, 1999 was made.
Submission on behalf of the respondents :
3. A preliminary objection was taken by Mr. Ranjan Roy on behalf of the C.B.I, that a chargesheet has since been filed, therefore, the appeal has become infructuous. Mr. S. K. Kapoor, appearing on behalf of the Union of India, supported the preliminary objection raised by Mr. Ranjan Roy apart from his contentions on merit. According to him, the investigation started on the basis of the complaint made on 24th of May, 1999, which was the First Information Report first recorded. The records were produced; the other two complaints were not found to be recorded in the First Information Register. This was the finding of the learned Single Judge. He further contended that it is the complaint on which investigation is initiated first is the First Information Report. The other two complaints not being acted upon and no investigation having been initiated thereupon, those two complaints cannot be treated to be First Information Report. The embargo is on successive investigation on the basis of successive complaints. But there is no prohibition in initiating investigation on the basis of a complaint made last or subsequent to the earlier complaints. Until earlier complaints are registered and treated as First Information Report, the principle enunciated in the case of T.T. Antony v. Stale of Kerala and Ors., cited by Mr. Mukherjee has no manner of application.
Reply by the appellant:
4. In reply Mr. Mukherjee contended that filing of chargesheet will not take away or affect the right of appeal already accrued. At the same time, the prayer for quashing the FIR was asked for before the chargesheet was filed. By virtue of the interim order passed in the writ petition, investigation was permitted but the filing of chargesheet was restrained. It is not a case of quashing of the FIR after the chargesheet. Therefore, the principle would not apply. In such a case filing of chargesheet after the stay is discharged would not affect the right of appeal already accrued.
CAN 1162 of 2004:
5. Both the learned Counsel had argued the case in support and against the grant of interim order for quite some time and relied upon various decisions in support of the respective contentions, to which we shall be referring at appropriate stage. Virtually, the argument was made on the merit of the whole case.
Filing of chargesheet: Maintainability of the appeal:
6. So far as the question as to whether the appeal has become infructuous after the filing of the chargesheet or not is concerned, the learned Counsel instructing Mr. Mukherjee emphatically pointed through Mr. Mukherjee that no chargesheet was filed and sought for adjournment in order to inform the Court after obtaining certified copy of the ordersheet. On the next date, the instructing lawyer submitted that no chargesheet was filed. Whereas Mr. Ranjan Roy produced the xerox copy of the ordersheet showing that the chargesheet was filed. Having looked at the xerox copy of the ordersheet produced by Mr. Ranjan Roy, it appeared that the chargesheet had since been filed. Mr. Mukherjee contended that the appeal could be said to have become infructuous in a case where the quashing was sought for on the ground that the FIR did not disclose any prima facie offence; but it would be different in a case where the ground on which quashing was asked for is the absence or want of jurisdiction or competence to initiate investigation on the basis of the FIR or the validity of the FIR itself. The contention of Mr. Mukherjee that the filing of the chargesheet after accrual of the right to appeal would not take away the right of the appellant to ask for quashing of the chargesheet and would not affect the appeal, does not seem to be a sound proposition.
6.1. The legislature in its wisdom did not provide any power to the Court to intervene at the stage of investigation by the police under the provisions of the Code of Criminal Procedure (Cr. PC). Investigation is the exclusive domain of the police. It is only when the chargesheet is filed, the Court is empowered either to take cognizance and to frame charge or to refuse to do the same. The FIR is the sheet anchor on the basis of which the investigation ensues. After the chargesheet is filed, the FIR does not remain the sheet anchor, the materials available during investigation are on record. It is the totality of the records on which the Court is supposed to act. The extraordinary powers under Article 226 of the Constitution of India exercised by the High Court for quashing of FIR are guided by certain principles. This principle emanates from the contents of the FIR itself. This is done in order to prevent unnecessary harassment of a citizen at the hands of the administration infringing the liberty guaranteed under Part III of the Constitution of India. After a chargesheet is filed, when there are other materials, which are in the form of report of the informations collected during investigation, the High Court cannot examine the same in exercise of its writ jurisdiction for quashing a criminal proceeding since it would be highly undesirable. Inasmuch as a writ proceeding is. determined on the basis of affidavit evidence. In order to come to the conclusion that on the basis of the materials disclosed in the chargesheet and the report, the chance of conviction is bleak would be an appreciation of evidence by the High Court in its extraordinary jurisdiction, which is otherwise impermissible. It would then amount to annihilating a still born prosecution by going into the merits on the plea of proof of the prima facie case and adverting to those facts and giving findings on merits resulting into grossest error of law in undertaking pre-trial of a criminal case by the High Court in exercise of its extraordinary jurisdiction under Article 226. Expeditious disposal of a criminal case is the cardinal rule. Delay defeats justice. Encouraging of writ petition would encourage to delay trial by diverse tricks feeding injustice to social order. The interference by the High Court after chargesheet is filed can be conceived in the rarest of rare cases where mala fide writ large.
6.2. The above proposition finds support in State of Bihar and Anr. v. P.P. Sharma and Anr., wherein it was held that the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India by the High Court for quashing of FIR after chargesheet is submitted on the ground that the materials produced the chances of conviction were bleak and, therefore, the criminal prosecution should not be allowed to continue and the High Court could not be an idle onlooker while the right under the Constitution was guaranteed to the accused was infringed, the Apex Court had held that if such a decision is upheld then starling and disastrous consequence would ensue. Quashing of the chargesheet even before cognizance is taken in a criminal case by the competent Court amounts to killing a still born child. After the chargesheet is filed, the FIR no longer remains the sheet anchor. The issue and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent Court. It is not the case that no offence has been made out in the chargesheet and the First Information Report. However, it does not mean that in no circumstances writ petition can be entertained.
6.3. In Anukul Chandra Pradhan v. Union of India and Ors. 1996 SCC (Cri) 1338, the Apex Court had held that in view of the chargesheet filed in the competent Court, it was that Court which was to deal with the case on merit. In State of Punjab v. Dharam Vir Singh Jethi, 1994 SCC (Cri) 500, it was held that when the chargeshoet was submitted quashing of FIR was not permissible since it would be open to the Court to refuse to frame charge. In Vineet Narain and Ors. v. Union of India and Anr., rt w1996 SCC (Cri) 264, it was held that where a chargesheet was filed, it was the competent Couhich would then deal with the case on merit in accordance with law while refusing to quash the FIR.
6.4. Therefore, we do not find any merit on the contention of Mr. Mukherjee on this proposition.
Whether the third complaint can be investigated upon :
7. So far as the other point is concerned, the learned Single Judge had found after having examined the Register of FIR that the earlier two complaints did not find place in the said Register. The third complaint dated 24th May, 1999 was the only First Information Report, entered in the Register. Therefore, this one was the First Information Report. In the decision in T.T. Antony v. State of Kerala and Ors., , the questions arose for determination were that : (i) whether the registration of a fresh case on the basis of second FIR is valid and it can form the basis of fresh investigation; (ii) whether the appellants had otherwise made out a case for quashing of the fresh case; (iii) what was the effect of the report of the Commission of Enquiry; (iv) whether the facts and circumstances of the case justify a fresh investigation. The first two points were considered together. After having discussed various decisions including the decision in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., relied upon by Mr. Mukhorjee and following Emperor v. Khawaja Nazir Ahmed , it was held that the registration of the second FIR as a fresh case was invalid and consequently the investigation made pursuant thereto was of no legal consequence and were accordingly quashed, while clarifying that this would not preclude the investigating agency from seeking leave of the Court in the case already registered for making further investigations and filing further report. On facts in the said case on the basis of the two rival FIR in relation to the incident, two rival cases were already registered and investigation was initiated or undertaken. On the basis of the report of the Commission of Enquiry, a fresh FIR was lodged on the basis whereof a fresh case was registered and a fresh investigation was undertaken which was held to be incompetent. Whereas in the present case, the earlier two complaints were not registered and no investigation was initiated on the earlier two complaints. It was the third complaint, which was registered as FIR on the basis whereof the investigation was initiated. The principle laid down in T.T. Antony (supra) relates to initiation of successive investigations and registration of successive complaints. Even then it does not preclude further investigation and further report on the basis of subsequent material. It precluded registration of fresh case and initiation of fresh enquiry. Admittedly, in the present case, there was no registration of fresh case or no initiation of fresh investigation. Therefore, the decision in T.T. Antony (supra) seems to have been rightly distinguished by the learned Single Judge and in our view. It has no manner of application in the present case.
7.1. In State of Haryana v. Ch. Bhajan Lal and Ors., , cited by Mr. Mukherjee, the principles on which the FIR can be quashed have since been laid down in para 108 thereof viz., (i) where the allegations made in the FIR or the complaint do not prima facie constitute any offence or make out a case against the accused; (ii) where the allegations in the FIR and the other materials accompanying the FIR do not disclose a cognizable offence, justifying an investigation of the police officer under Section 156(1) Cr. PC except under an order of a Magistrate within the purview of Section 155(2) Cr.PC; (iii) where the uncontroverted allegations made in the FIR or the 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; (iv) where the allegations in the FIR do not constitute a cognizable offence but constitute a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) Cr.PC; (v) where the allegations made in the FIR or the complaint are so absurd and inherently improbable on the basis of which no prudent person can even reach a just conclusion that there is sufficient ground for proceeding against the accused; (vi) where there is an express legal bar engrafted in any of the provisions of Cr. PC or the concerned Act to the institution and continuance of the proceedings or where there is a specific provision in the Cr.PC or the concerned Act providing efficacious redress for the grievance of the aggrieved party; (vii) where a criminal proceeding is manifestly attended with mala fide and where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spiting him due to private and personal grudge.
7.2. The ground canvassed by Mr. Mukherjee drawing inspiration from T.T. Antony (supra) may be one, which might be added to those guidelines. But then in a case as in the present one where the third complaint is the first registered FIR on which investigation has been initiated, the question would be of only academic interest. Inasmuch as on the basis of the ratio decided in T.T. Antony (supra) even if the investigation were initiated on the basis of the first complaint, even then the second and third complaints could be added to or included within the scope of the case that could have been registered on the basis of the first complaint and with the leave of the Court, further investigation and report could have been made and submitted. Therefore, it would be only a question of technicality. But then on facts the third complaint appears to be the information report first registered and the investigation was first initiated thereupon. It was not a case of a fresh registration of second or third complaint or a fresh investigation on the basis of such subsequent complaint or complaints.
7.3. The decision in Superintendent of Police, CB1 and Ors. v. Tapan Kumar Singh, cited by Mr. Mukhcrjee is distinguishable on the ground that the FIR lodged on 20th October, 1990 was not the FIR in law as it was recorded after the investigation proceeded in some extent, which is not the case here. The decision in Kari Choudhary v. Mst. Sita Devi and Ors., , also does not help Mr. Mukherjee having regard to the facts and circumstances of the case. Inasmuch as in the said decision, it was held that there cannot be two FIR except in cases where there were rival versions in respect of the same episode which would normally take the shape of two different FIR and investigation could be carried on under both of them by the same investigating agency. Even then the report submitted on the basis of the investigation carried on under the second FIR could be considered as new discovery made by the police during investigation. Quashing of the proceedings merely on the ground that final report had been led in the first FIR was too technical. The ultimate object of every investigation was to find out whether the offence as alleged had been committed and if so who had committed it. We have seen that in each case the Apex Court was more concerned with the ultimate discovery of the commission of offence and the person by whom it was so committed.
7.4. Thus, from the above discussion, we do not find that there is any infirmity in the initiation of the investigation on the basis of the third complaint, the only FIR registered in the Register without attracting the principles enunciated in the different decisions discussed above.
Civil liability : Simultaneous proceedings :
8. The submission of Mr. Mukherjee with regard to the scope of Section 34 of the Arbitration and Conciliation Act, 1996 being the appropriate forum where these questions can be gone into and being a civil liability could not form the subject-matter of a criminal investigation does not seem to be a sound proposition. Inasmuch as one action might give rise to different kind of liabilities. It might envisage a civil liability as well as a criminal liability. (See Tapan Kumar Dey Majutndar v. State of West Bengal and Ors., C.O. No. 14840(W) of 1985 disposed of by me on 29th January, 2002). There could be no embargo in pursuing both the remedies simultaneously. It would not be a question of disclosure of defence. The defence would altogether be different. One would be a defence to the criminal liability coupled with the mens rea to bring home the charges which would be completely different from the civil liability both of which could be saddled upon the person committing the act, giving rise to different liabilities. At the same time, the civil proceeding was initiated by the accused himself saddling the liability on the respondent. The respondent had not imposed any liability cm account of the action of the accused. The respondent was simply attempting to defend the liability sought to be saddled by the accused upon the respondent. Therefore, the principle of simultaneous civil and criminal proceedings would not be attracted in the present case though sought to be argued by Mr. Mukherjee. However, in our view, there cannot be any conflict with regard to the civil and criminal proceedings and that too in a case where the civil proceeding is finally adjudicated and subjected to appeal wherein the evidences were already on record and it would only be a question of appreciation of the evidence and the application of the proposition of law emerging in the case.
Malice in law : Mala fide :
9. The principle of malice in law as mooted by Mr. Mukherjee does not find support from the materials disclosed before us.
Conclusion:
10. In these circumstances, we do not find any merit in the application for interim order. The application, therefore, fails and is hereby rejected.
11. We proposed to dispose of the appeal itself. But Mr. Mukherjee points out that the appeal involves very interesting and serious questions of law, which need to be decided and, therefore, the appeal should be heard some times later. We, therefore, keep all points open and direct the appellant to prepare the informal paper book out of Court within a period of eight weeks. Since the parties have appeared, no notice of appeal need be served. Service of notice of appeal and all other formalities are dispensed with. Let the appeal be treated ready by appearance. The hearing of the appeal be expedited.
Rajendra Nath Sinha, J.
12. I agree.