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2015 DIGILAW 1152 (RAJ)

Kajod Mal Meena v. State of Rajasthan

2015-05-28

PRASHANT KUMAR AGARWAL

body2015
Hon'ble AGARWAL, J.—By way of this Criminal Misc. Petition u/Sec. 482 Cr.P.C., the accused-petitioner has prayed for quashing of FIR No. 165/2006 registered at Police Station A.C.D. Chowki, Bundi for the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereeinafter to be referred as "the Act") and the charge-sheet submitted on the basis of investigation carried out thereunder and also the criminal proceedings pending against him in the form of Criminal Case No. 28/2013 in the Court of Special Judge (Anti-Corruption Cases), Kota. The main ground of challenge is that for the same offence/incident, FIR No.121/2005 was regis-tered against the petitioner and after investigation charge-sheet was filed in the competent Court and, therefore, second FIR/charge-sheet is barred by law. 2. Brief relevant facts for the disposal of this petition are that a written report came to be lodged against the petitioner on 4.6.2005 by the complainant-Shri Narayan Singh regarding illegal demand of bribe and after verification of the same, trap proceedings were led and the petitioner was caught red-handed while obtaining Rs. 10,000/- as gratification from the complainant. As a result of the proceedings so conducted, FIR No. 121/2005 came to be registered for the offence under Section 13(1) (d) read with Section 13(2) of the Act against the petitioner and after usual investigation charge-sheet was filed and the petitioner is facing trial for the same. It is to be noted that during the course of trap proceedings in the above case, the officers of ACD received a source information to the effect that the petitioner is in possession of assets which are disproportionate to his known source of income. On the basis of said information, the residential house of the petitioner situated at Bundi was searched, but on the basis of the search so carried out, offence under Section 13(1)(e) was neither included in the aforesaid FIR nor charge-sheet was filed for the same. During the course of investigation of FIR No. 121/2005, further search was carried out and more evidence, oral and documentary, was collected and a separate FIR No. 165/2005 for offence under Section 13(1)(e) read with Section 13(2) of the Act was registered and as a result of investigation, separate charge-sheet was filed. It is this second FIR and the charge-sheet and proceedings arising thereunder which are the subject matter of challenge in the present petition. 3. It is this second FIR and the charge-sheet and proceedings arising thereunder which are the subject matter of challenge in the present petition. 3. It was submitted by the learned counsel for the petitioner that there cannot be two or more FIRs registered in relation to the same occurrence or different events or incidents, two or more, but forming part of the same transaction. According to the learned counsel for the petitioner in the present case, two events or incidents occurred which are part of the same transaction. In the first incident/event, the petitioner was caught red-handed while accepting bribe, whereas in the course of the same transaction, the officers of ACD went ahead to search house of the petitioner and on search being made, according to ACD, it was found that the petitioner has in his possession assets which are disproportionate to his known source of income. It was further submitted that during the course of inquiry of the first FIR also, evidence regarding assets of the petitioner was collected and it has also been made part of the charge-sheet of the earlier FIR. 4. On the other hand, it was submitted by the learned Public Prosecutor that two incidents/occurrences are district and separate involving distinct and independent offences punishable under different provisions of the Act and they cannot be said to be part and parcel of the same transaction merely by the reason that during the course of the trap proceedings, on the basis of a source information, the ACD took further steps to make search of house of the petitioner. 5. I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law. 6. Although, it is a settled principle of law that there cannot be two or more FIRs for the same offence, but at the same time the Court in order to examine the impact of one or more FIRs has to rationalise the facts and circumstance of each case and then apply the test of "sameness" to find out whether both FIRs relate to the same incident and to the same occurrence, or in regard to incidents which are two or more parts of the same transaction or based upon distinct and different facts and whether scope of its inquiry is entirely different or not. If the answer falls in the first in the first category, the second FIR may be liable to be quashed. However, where the incident is separte, offences are different, or where the subsequent offence is not covered within the ambit and scope of the FIR recorded first, then a second FIR could be registered. 7. In the present case, the allegation made in the earlier FIR and the present FIR are not the same, rather they relate to different incidents. The earlier FIR was registered on the basis of a complaint made by the complainant regarding the alleged demand of gratification made by the petitioner, acceptance and recovery of the same from the petitioner whereas the present FIR has been registered against the petitioner when it was found that he is in possession of assets which are disproportionate to his known sources of income. The offence relating to earlier FIR is under Section 13(1)(d) read with Section 13(2) of the Act, which provides that if a public servant by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage or by abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage whereas the present FIR is for an offence under Section 13(1)(e) which provides that if a public servant or any person on his behalf is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Thus, the offences for which the two FIRs have been registered are distinct and separte offences. Merely because during the course of inquiry in the earlier FIR, the house of petitioner at Bundi was also searched, it cannot be said that it is the part and parcel of the same transaction. Although, it was possible for the ACB to include the evidence collected during the search of the house of the petitioner in the earlier FIR and to register it for offence under Section 13(1)(e) of the Act also, but in the facts and circumstances of the case, it cannot be said that the second FIR is legally barred. Although, it was possible for the ACB to include the evidence collected during the search of the house of the petitioner in the earlier FIR and to register it for offence under Section 13(1)(e) of the Act also, but in the facts and circumstances of the case, it cannot be said that the second FIR is legally barred. It is an admitted fact that the offence under Section 13(1)(e) of the Act was neither investigated nor charge-sheet was filed for the said offence in respect of the earlier FIR. It cannot be disputed that even if there was no complaint regarding demand of bribe by the petitioner and no trap proceedings conducted, even then the ACD was entitled to register FIR for offence under Section 13(1)(e) of the Act against the petitioner if it finds that the petitioner has in his possession assets which are disproportionate to his known source of income and for such an offence trap proceedings are not required to be conducted. 8. Consequently, this petition is, hereby, dismissed. The stay application also stands dismissed.