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Jharkhand High Court · body

2014 DIGILAW 193 (JHR)

Ashok Kumar Bharti v. State of Jharkhand

2014-01-30

R.R.PRASAD

body2014
ORDER The petitioner, a teacher, was entrusted with a job of Junior Engineer for constructing the buildings of different Schools namely, Kasturba Gandhi Girls' Residential Schools, situated at different places in the District of Bokaro, for the said purpose money was advanced to him which was allegedly misappropriated by him. Therefore, the teachers of Kasturba Gandhi Girls' Residential Schools lodged the following cases in between 07/11/2009 to 15/12/2009: 1.) Pindrajora P.S. Case No. 102 of 2009 (G.R. No. 1310/2009), registered under Section 409 of the Indian Penal Code; 2.) Petarwar (Tenughat) P. S. Case No. 97 of 2009, registered under Sections 409, 420/120B of the Indian Penal Code; 3.) Gomia P.S. Case No. 126 of 2009, registered under Sections 467, 468, 409, 420 of the Indian Penal Code; 4.) Bokaro (Thermal) P. S. Case No. 88 of 2009, registered under Sections 409, 420 of the Indian Penal Code; 5.) Jaridih P.S. Case No. 96 of 2009, registered under Sections 409/420 of the Indian Penal Code; 6.) Nawadih P.S. Case No. 85 of 2009, registered under Sections 409 of the Indian Penal Code and 7.) Chandankiyari P.S. Case No. 177 of 2009, registered under Sections 406/409 of the Indian Penal Code; The matter was taken up for investigation. Having completed the investigation, the police submitted charge sheet, upon which cognizance of the offence has been taken in respective cases. 2. Meanwhile, the Vigilance lodged a Vigilance P.S. Case No. 68 of 2010, on 06/12/2010, by virtue of the order passed by this Court, on the allegations that for the financial years 20032009, the work relating to the construction and supervision of the construction of the buildings of different schools situated at Gomia, Petarwar, Chandankiyari Blocks, was entrusted to the petitioner, who had been assigned the job of Junior Engineer, whereby he used to get the money released by the Secretary and the Chairman of the Education Committee for constructing buildings as an advance, but either he did not do any work or did work partly. In this manner, he misappropriated lakhs and lakhs of rupees. The matter was taken up for investigation. In this manner, he misappropriated lakhs and lakhs of rupees. The matter was taken up for investigation. After completion of the investigation, the charge sheet was submitted not only against the petitioner but also against several persons, as many as 32 in numbers, including the high officials of the Education Department under Sections 406, 409, 467, 468, 471 and 109 of the Indian Penal Code and also under Sections 7, 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act. 3. Thereupon, the petitioner has moved this application for quashing of the order dated 05/03/2011, passed by the Special Judge, Vigilance, Ranchi in Vigilance P.S. Case No. 68 of 2010 (Special Case No. 85 of 2010), whereby and whereunder cognizance has been taken for the offences punishable under Sections 403, 406, 409, 120B, 467, 468, 471, 109 of the Indian Penal Code and also under Sections7/13(2) read with Sections 13(1) (c)(d) of the Prevention of Corruption Act. 4. Mr. Sahani, learned counsel appearing for the petitioner submits that earlier 7 cases had been lodged against the petitioner, on the allegation that money had been entrusted to the petitioner for constructing buildings of different Kasturba Gandhi Girls' Residential Schools, but the petitioner misappropriated all those amounts. In all the cases, after investigation, when charge sheets were submitted, cognizance of the offence has been taken against the petitioner. In all the cases, after investigation, when charge sheets were submitted, cognizance of the offence has been taken against the petitioner. At the same time, the Vigilance also lodged the case with respect to same allegation of misappropriation of the amount meant for construction of the buildings of the Kasturba Gandhi Girls' Residential Schools and also with respect to misappropriation of the amount entrusted to him for construction of buildings of different Schools in the District of Bokaro, in which cognizance has already been taken not only against the petitioner but also against other accused persons and, therefore, if the petitioner is put to trial in the cases, lodged by the District Police as well as in the case lodged by the Vigilance, the petitioner would be vexed twice for the same allegation, which is against the mandate of the Constitution and also declensions rendered in the cases of “T.T. Antony versus State of Kerala & Others”, [ (2001) 6 SCC 181 ], “Babubahai versus State of Gujrat and others” [ (2010) 12 SCC 254 ] and also in the case of “Amitbhai Anilchandra Shahversus The Central Bureau of Investigation and Anr., [ (2013) 6 SCC 348 ]” and, thereby, the order taking cognizance in the Vigilance case is fit to be quashed. 5. Mr. Nilesh Kumar, learned counsel appearing for the Vigilance submits that it is true that earlier 7 cases had been lodged against the petitioner, but those 7 cases were with respect to the allegation pertaining to misappropriation of amount by the petitioner, which were meant for construction of the buildings of 7 different Kasturba Gandhi Girls' Residential Schools, whereas the F.I.R lodged by the Vigilance is with respect to 150 Schools including 8 new upgraded schools and 130 new primary schools, as well as those 7 Kasturba Gandhi Girls' Residential Schools and, thereby, the allegations with respect to misappropriation of the amount meant for construction of the building of new upgraded schools and the new primary schools were never part of the allegations with respect to 7 cases of misappropriation relating to construction of the buildings of Kasturba Gandhi Girls' Residential Schools. Further, it was submitted that in the cases lodged with respect to misappropriation of the amount relating to Kasturba Gandhi Girls' Residential Schools , only the petitioner has been made accused, whereas in the case lodged by the Vigilance, it has been found that number of persons in conspiracy with each other have committed offence not only of misappropriation but also the offence of forgery as well as the offence under the Prevention of Corruption Act, whereas allegations of conspiracy was never there in the case lodged by the District Police and even some of the informant of those 7 cases, have been found to be in league with the petitioner. The Vigilance during investigation did find that the petitioner was deputed to work as Junior Engineer for construction/supervision of the construction of the buildings of different schools under 'Sarv Shiksha Abhiyan'. It was found that by making wrong entries in M.V. Book, the petitioner embezzled Rs. 63,90,133/out of Rs. 56, 376,900/allotted to him, which was meant for construction of the buildings of 127 Schools. The petitioner was found to have completed the work of only 52 School's building, while rest 75 School's buildings, were left incomplete. In some of the cases, even the initial work was not done. The petitioner had withdrawn the money in advance by bypassing the rules as he was found to have had operated the account himself and for this act, he used to give bribe to different persons and that whoever have been found to be guilty for conniving the petitioner in the matter relating to misappropriation of fund, they have all been charge sheeted. Thus, it was submitted that the amplitude of the case, lodged by the Vigilance is very wide and is not only confine to the cases lodged by the District Police and, thereby, there was no illegality in instituting the case by the Vigilance in view of the decision rendered in a case of “Nirmal Singh Kohlon versus State of Punjab and others, reported in (2009) 1 SCC 441 ”. Further, it was submitted that the ratio laid down in those cases, referred to on behalf of the petitioner, is never applicable in the instant case and, thereby, the prayer made by the petitioner in this application is fit to be rejected. 6. Further, it was submitted that the ratio laid down in those cases, referred to on behalf of the petitioner, is never applicable in the instant case and, thereby, the prayer made by the petitioner in this application is fit to be rejected. 6. Having heard counsel appearing for the parties and on perusal of the records, it is evident that 7 cases, lodged by the District Police against the petitioner, had confined to the allegation of misappropriation of the amounts, which were meant for construction of the buildings of different Kasturba Gandhi Girls' Residential Schools, whereas the case, which was lodged by the Vigilance does have wide amplitude as it relates to misappropriation of the amounts meant for construction of the buildings as many as 150 in numbers, and that to, the allegation of conspiracy was there. During course of investigation, the Vigilance did find number of persons being in league of the petitioner in getting the amount misappropriated and, as such, the case lodged by the Vigilance cannot be said to be in conflict with the ratio laid down in the case of “T.T. Antony” (supra), wherein their Lordships had held 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 subsection (8) of Section 173 CrPC. 20. 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 subsection (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. 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 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.” 7. Same principle has been laid down in a case of “Babubahai versus State of Gujrat” (supra). The instant case lodged by the Vigilance can be said to be in consonance with the ratio laid down in a case of “Nirmal Singh Kohlon” (supra), wherein the Hon'ble Supreme Court has been pleased to carve out an exception for filing second FIR. As per the exception carved out in the said case, the second FIR lies in a case where the first FIR does not contain any allegation of criminal conspiracy. 8. So far instant case is concerned, one would find that some of the allegations pertaining to misappropriation of the amount meant for construction of the buildings of Kasturba Gandhi Girls' Residential Schools, are the same. The Police as well as the Vigilance had submitted charge sheet with respect to those allegations and, thereby, if the petitioner is allowed to face trial in both the cases, he can be said to have been vexed twice for the same allegations, which is against the principle of the Constitution. Thus, the situation is that neither the FIR, lodged by the Vigilance can be said to be illegal nor the petitioner can be allowed to face prosecution twice for the same allegations. Thus, the question does arise as to what could be way out ? I need not to go far to find out solution as the Hon'ble Supreme Court in a case of “Ram Lal Narang versus State (Delhi Administration), [ (1979) 2 SCC 322 ]”, has taken care of this situation wherein it has been held as follows: “22. Thus, the question does arise as to what could be way out ? I need not to go far to find out solution as the Hon'ble Supreme Court in a case of “Ram Lal Narang versus State (Delhi Administration), [ (1979) 2 SCC 322 ]”, has taken care of this situation wherein it has been held as follows: “22. As in the present case, occasions may arise when a second investigation started independently of the first may disclose a wide range of offences including those covered by the first investigation. Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior court to have the two cases tried together. The Magistrates themselves may take action suo motu. In the present case, there is no problem since the earlier case has since been withdrawn by the prosecuting agency. It was submitted to us that the submission of a chargesheet to the Delhi court and the withdrawal of the case in the Ambala court amounted to an abuse of the process of the court. We do not think that the prosecution acted with any oblique motive. In the chargesheet filed in the Delhi court, it was expressly mentioned that Mehra was already facing trial in the Ambala Court and he was, therefore, not being sent for trial. In the application made to the Ambala Court under Section 494 CrPC, it was expressly mentioned that a case had been filed in the Delhi Court against Mehra and others and, therefore, it was not necessary to prosecute Mehra in the Ambala court. The Court granted its permission for the withdrawal of the case. Though the investigating agency would have done better if it had informed the Ambala Magistrate and sought his formal permission for the second investigation, we are satisfied that the investigating agency did not act out of any malice. We are also satisfied that there has been no illegality. Both the appeals are, therefore, dismissed.” 9. Under the circumstances, it becomes imperative that both the cases be tried together. We are also satisfied that there has been no illegality. Both the appeals are, therefore, dismissed.” 9. Under the circumstances, it becomes imperative that both the cases be tried together. Consequently, by invoking the power as contained in Section 407(c) of the Code of Criminal Procedure, all those cases, lodged by the District Police, reference of which have been given herein above, be transferred from the Court, where it is pending to the Court of Special Judge, Vigilance, Ranchi, where Vigilance P.S. Case No. 68 of 2010 (Special Case No. 85 of 2010), is pending. 10. With the aforesaid direction, this application stands disposed of. Application disposed of.