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2013 DIGILAW 542 (JHR)

Nirmal Kumar v. State of Jharkhand

2013-04-23

R.R.PRASAD

body2013
Order Heard learned counsel appearing for the petitioner and learned counsel appearing for the State. 2. This application has been filed for quashing of the First Information Report pf Gumla P.S. Case No.337 of 2011 [G.R. No.1110 of 2011] instituted under Sections 467, 468, 471, 420, 406, 409, 120-B of the Indian Penal Code against the petitioner on the ground that for the same set of allegation which are there in the First Information Report, earlier Basia P.S. Case No. 51 of 2008 had been lodged. 3. Before adverting to the submissions-advanced on behalf of the parties, the case of the prosecution needs to be taken notice of. 4. It is the case of the prosecution that one N.G.O., named as 'Utthaan' was awarded with the work of growing Jatropha plants over 679.34 acres of land situated in different villages of Basia Block, which were to be grown during a period of three years for which a sum of Rs.59, 34, 743/-was given in advance to the N.G.O., namely, 'Utthaan'. In course of time, when enquiry was made with respect to work done for the financial year 2007-08, in that course, certain quantity of manure was claimed to have been purchased, but it was never found to have been purchased to that extent. The claim had been made on the basis of certain cash-memos which were found to be forged. Thereupon, it was found that the petitioner has misappropriated a sum of Rs. 7, 78, 818/-. 5. On such allegation the case was registered as Basia P.S. Case No. 51 of 2008 under Sections 406, 420 of the Indian Penal Code. 6. Subsequently with respect to same subject matter, another F.I.R. was lodged, wherein, it was alleged that 'Utthan', an N.G.O. was entrusted with the work of growing Jatropha Plants over the land which was made available by the District Administration and for that the same amount which was subject matter of the earlier First Information Report i.e. a sum of Rs. 59, 34, 743/- was made available. During enquiry, the petitioner had claimed investment of money towards purchase of manure, for which vouchers were produced, but those vouchers were found to be forged and thereby, at that time, it was alleged that a sum of Rs. 59, 34, 743/- was made available. During enquiry, the petitioner had claimed investment of money towards purchase of manure, for which vouchers were produced, but those vouchers were found to be forged and thereby, at that time, it was alleged that a sum of Rs. 7, 78, 818/- has been misappropriated, but when enquiry was made in detail, it was found that the petitioner had not grown Jatropha plants to the extent of area of land which was claimed by the N.G.O. rather it had been grown over for less area of the land and thereby, it has been alleged that a sum of Rs. 58, 72, 373/- has been misappropriated. On such allegation, Gumla P.S. Case No. 337 of 2011 has been lodged. 7. Mr. Prasad, learned counsel appearing for the petitioner submits that on going through the allegations made in both the F.I.Rs., it would appear that basically the allegations are the same, but it has been divided into two parts, one is with respect to misappropriation of the amount of Rs. 7,78,818/- which amount was claimed to have been spent in purchasing manure for which vouchers were produced, but the vouchers were found to be forged whereas, in the 2nd F.I.R. it has been alleged that the petitioner did not grow Jatropha plants over the area of the lands to the extent which it was claimed by the petitioner, and, therefore, since both the allegations arise out of the same transaction, two F.I.Rs. cannot be maintained, in view of the decisions rendered in a case of Amitbhai Anilchandra Shah vs. The Central Bureau of Investigation and Anr. [Writ Petition (Criminal) Nos. 149 of 2012 and 5 of 2013] and also in a case of Babubhai vs. State of Gujarat & Ors. [ (2010)12 SCC 254 ] as well as in a case of T.T. Anthony vs. State of Kerala [ (2001)6 SCC 181 ]. Therefore, subsequent F.I.R. is fit to be quashed. 8. [Writ Petition (Criminal) Nos. 149 of 2012 and 5 of 2013] and also in a case of Babubhai vs. State of Gujarat & Ors. [ (2010)12 SCC 254 ] as well as in a case of T.T. Anthony vs. State of Kerala [ (2001)6 SCC 181 ]. Therefore, subsequent F.I.R. is fit to be quashed. 8. As against this, learned counsel appearing for the State submits that the amount of misappropriation in case of First Information Report lodged earlier is quite meagre, whereas, amount of misappropriation is quite considerable and that for distinct allegations, two cases have been lodged and therefore, there has been no illegality in instituting two cases, in view of the decision rendered in a case of Nirmal Singh Kohlon vs. State of Punjab and Others as reported in (2009)1 SCC 441 . 9. Having heard learned counsel appearing for the parties and on perusal of records, it does appear that the basic facts in both the cases are that one N.G.O., namely. "Utthan" was entrusted with the work of growing Jatropha plants over 679.34 acres of land and those plants are to be grown during next three years and the amount was to be released phase-wise. In first phase, a sum of Rs. 59.34,743/- was given in advance. In course of time, when enquiry was made with respect to work done, it was found that a false claim was laid with respect to purchase of manure worth Rs. 7,78,818/and thereby, it was alleged that the petitioner has misappropriated a sum of Rs. 7,78,818/- and for that the case was lodged. Subsequently, when it was found that apart from the misappropriation of the amount as aforesaid, the petitioner did not grow Jatropha Plants to the extent of the area of the land as claimed, it was assessed that the petitioner has misappropriated a sum of Rs. 58,72,373/-. 10. Thus, it is apparent that on two counts the amount of misappropriation has been assessed, but acts alleged in both the cases form part of the same transaction. In such situation, two F.I.Rs. cannot be maintained, in view of the decision, rendered in a case of T.T. Anthony [supra], wherein, it has been held as under:- 19. 58,72,373/-. 10. Thus, it is apparent that on two counts the amount of misappropriation has been assessed, but acts alleged in both the cases form part of the same transaction. In such situation, two F.I.Rs. cannot be maintained, in view of the decision, rendered in a case of T.T. Anthony [supra], wherein, it has been held as under:- 19. The observations, findings and directions in Rubabbuddin Sheikh (supra) dearly show that the alleged killing of Tulsiram Prajapati was thus perceived even by this Court to be an act of forming part of the very same transaction and same conspiracy in which the offence of killing of Sohrabuddin and Kausarbi took place. The CBI also, upon investigation held that "strong suspicion expressed by this Court in the above judgment was true and filed charge-sheet/s". 20. Pursuant to the decision in Rubabbuddin Sheikh (supra) dated 12.1.2010, the CBI filed a fresh FIR, viz., first FIR. It is also clear that during the investigation, the CBI came to the conclusion that this first FIR was a part of the series of acts concerning with the alleged offence of abduction and killing of two individuals, viz., Sohrabuddin on 25/26.11.2005 and Kausarbi on 29.11.2005 culminating with the killing of one more person, viz., Tulsiram Prajapati as part of the very same conspiracy. 21. Now, let us discuss the charge-sheet dated 23.7.2010 filed by the CBI in the first FIR. As rightly pointed out by Mr. Mahesh Jethmalani, learned Senior Counsel for the petitioner-Amit Shah, in this charge-sheet itself, the CBI categorically mentioned that the killing of Tulsiram Prajapati is also a part of the very same conspiracy which is mentioned in the first FIR above. 11. The principle laid down by Their Lordship in the case referred to above has been reiterated subsequently in the case of Babubhai vs. State of Gujarat & Ors. (supra) and Amitbhai Anilchandra Shah vs. The Central Bureau of Investigation and Anr. (supra). 12. So far decision referred to on behalf of the State is concerned, that is not applicable in the facts and circumstances of the case. In the case of Nirmal Singh Kahlon vs. State of Punjab and Others (supra). (supra) and Amitbhai Anilchandra Shah vs. The Central Bureau of Investigation and Anr. (supra). 12. So far decision referred to on behalf of the State is concerned, that is not applicable in the facts and circumstances of the case. In the case of Nirmal Singh Kahlon vs. State of Punjab and Others (supra). Their Lordship having found the 2nd FIR being lodged only on detection of large angle of conspiracy, whereas, it was absent in the 1st FIR, offences were considered to be separate and distinct and hence, did not find any illegality with the lodgment of 2nd F.I.R. 13. Here in the instant case, acts alleged in both the cases form part of same transaction. 14. Thus, there has teen no hesitation in holding that the 2nd F.I.R. which was lodged was quite unjustified, but since the charge-sheets have been submitted in both the cases, no useful purpose would be served by quashing the 2nd F.I.R. and directing the I.O. of the first case to go for further investigation. 15. Since charge-sheets have already been submitted in both the cases, charge-sheet submitted in the case which was lodged later on i.e. in Gumla P.S. Case No. 337 of 2011 (G.R. No. 1110 of 2011) should be treated as supplementary charge-sheet to the first charge-sheet submitted in the case of Basia P.S. Case No. 51 of 2008. 16. Consequently, the petitioner is to be put on trial in one case, whereby, charges be framed keeping in view the provision as contained in Section 220 of the Cr.P.C. 17. With these observations, this application stands disposed of. 18. It was informed that both the cases are in different courts, since only one trial is to be undertaken, necessary order be passed by the learned Sessions Judge for transferring both the case to one court.