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2018 DIGILAW 1034 (GAU)

Redaul Hussain Khan v. State of Assam

2018-07-16

RUMI KUMARI PHUKAN, UJJAL BHUYAN

body2018
ORDER : Ujjal Bhuyan, J. This appeal was heard on 20.06.2018 and today is fixed for delivery of order. 2. We have heard Mr. KN Choudhury, learned Senior Counsel for the appellant and Mr. D. Mazumdar, learned Addl. Advocate General, Assam for the respondents. 3. This appeal is directed against the judgment and order dated 15.12.2017, passed by the learned Single Judge, dismissing the writ petition filed by the appellant as the writ petitioner for quashing of the second FIR. 4. FIR in question is being challenged and sought to be quashed primarily on the ground that it is a second FIR of the same incident or the same transaction; there is an element of sameness and, therefore, the said FIR would not be maintainable. 5. Appellant is facing prosecution in two cases, one relating to FIR dated 13.05.2010 and the other relating to FIR dated 25.05.2012. It is the legitimacy of the FIR dated 25.05.2012, which is being questioned by the appellant as the second FIR on the same set of facts. 6. Appellant had contended that following the first FIR dated 13.05.2010, charge sheet was submitted where after, subsequent FIR dated 25.05.2012 was filed, subject matter of which directly related to the subject matter of the first FIR. 7. Contention of the appellant was contested by the State by submitting that both the cases are distinguishable; while the first case relates to misappropriation of Government money and related criminal offences, the second case relates to possession of disproportionate assets. Upon due consideration, learned Single Judge took the view that the two cases arise out of different circumstances and, therefore, the FIR dated 25.05.2012 cannot be said to be the second FIR. Accordingly the writ petition was dismissed. 8. Hence, this appeal. 9. At the outset, it would be apposite to extract the relevant portion of the judgment and order passed by the learned Single Judge on 15.12.2017 as under:- "6. In order to appreciate the rival contention, the subject matter of the two cases should be noted at the outset. The 1st FIR was filed following the intimation in the NIA letter No. 04/2009/NIA-1280-81 dated 15.03.2010 requesting for a CBI investigation into allegation of misappropriation of Government funds by public servants in North Cachar Hills by misuse of official position, criminal misconduct, forgery, etc. The competent authority gave consent and the criminal process started in the first case. The 1st FIR was filed following the intimation in the NIA letter No. 04/2009/NIA-1280-81 dated 15.03.2010 requesting for a CBI investigation into allegation of misappropriation of Government funds by public servants in North Cachar Hills by misuse of official position, criminal misconduct, forgery, etc. The competent authority gave consent and the criminal process started in the first case. 7. The 2nd FIR was filed when the Officer i.e. the petitioner was found to have acquired huge properties worth Rs. 14,02,09,943/-, which included unaccounted hidden cash of Rs. 13,45,98,000/-. This was grossly disproportionate to his known source of income. 8. In the first case, the offences are under Section 13(2) read with Section 13(1)(c) & (d) of the P.C. Act and Section 120B, 420, 409, 467 of IPC. But in the 2nd case, the charge related to disproportionate assets under Section 13(1) (e) and 13(2) of the P.C. Act. That apart, the first case involved the sum of Rs. 13.5 crores from the bank account of Social Welfare Department relating to the year 2008-09 when Mr. R.H. Khan i.e. the petitioner, was an employee of the Social Welfare Department in the N.C. Hills. Whereas the 2nd case involved the sum of Rs. 14,02,09,943/-, of which Rs. 13,45,98,000/- was cash stashed in secret cavity in the wall. 9. The cause of action in the two cases is also distinguishable. In the first case, the cause of action arose when the misappropriation as discovered by NIA was reported to the Secretary vide letter No. 04/2009/NIA-1280-81, dated 15.03.2010 and in the 2nd case, the cause of action arose for non-explanation of the petitioner's hidden assets of above Rs. 14 crores, which grossly exceeded his total income of around Rs. 25 lakh drawn as CDPO and Deputy Director. 10. In so far as the judgment in T.T. Antony (supra) relied upon by the Sr. counsel, in the cited case, the initial FIR was filed for the offence of unlawful assembly, rioting, attempt to murder etc. On further investigation, it was found that the firing caused the death of 5 people and a case under Section 302 of the IPC was made out and a different FIR was registered. The 2nd FIR was quashed because the two events were in essence so closely connected that they formed part of the same transaction. On further investigation, it was found that the firing caused the death of 5 people and a case under Section 302 of the IPC was made out and a different FIR was registered. The 2nd FIR was quashed because the two events were in essence so closely connected that they formed part of the same transaction. The first FIR related to the effect of the transaction and the 2nd FIR related to the cause of the transaction. 11. However when the distinguishing features are analysed in the two cases under consideration, it can be easily seen that the two cases here may not be the part of the same transaction as this would require the assumption that all the unexplained assets alleged in the 2nd FIR, came from the misappropriation of funds alleged in the 1st FIR. This can only be established by investigation for which the 2nd FIR needs to be followed up to its logical end. 12. As regards the provisions of Section 219 under the Cr.P.C., which talks about a person being tried in one trial, if more than one offence of the same kind are committed within a period of 12 months, it would not be attracted in the present case. Section 219(2) defines same kind with regard to offences stating that offences are of the same kind if they are punishable with the same quantum of punishment, under the same section of the IPC, or of any special or local laws. In the present case, the offences are not of the same kind as the offence alleged in the 1st FIR relates to the misappropriation of Government funds along with cheating, criminal breach of trust, etc. as prescribed under the IPC. While the 2nd FIR contains allegations relating to the disproportionate assets, with respect to the income of a public servant, which falls squarely under the P.C. Act. Thus, the offences under the 1st FIR and the 2nd FIR, respectively, are different keeping in mind the punishments attracted by the said offences as well as the Sections under which the respective offences are covered. 13. Thus, the offences under the 1st FIR and the 2nd FIR, respectively, are different keeping in mind the punishments attracted by the said offences as well as the Sections under which the respective offences are covered. 13. Furthermore, section 220 of the Cr.P.C., 1973 as submitted by the petitioner is also not attracted in the present case, as this section mandates trial of a person in a single trial for multiple offences when such offences are part of one series of acts so connected together as to form the same transaction. If the offences alleged in the 1st and 2nd FIR are considered to be part of the same transaction, then it would require the assumption that all the non-explained assets as complained against in the 2nd FIR are necessarily the result of the misappropriated funds as complained against in the 1st FIR. This is not an established fact as of now and as such, the said section of the Cr.P.C. cannot be applied in the present case, to justify the quashing of the 2nd FIR. 14. In my considered perception, the two cases arise out of different circumstances. The first case is not related to the offence of disproportionate income therefore the 2nd case under appropriate section, had to be registered. Following the distinguishing features of the two cases, I am of the view that the ratio of T.T. Antony (supra) is not attracted in the present matter. On the other hand, the ratio of Ram Lal Narang v. State (Delhi Administration) reported in (1979) 2 SCC 322 is more relevant for this case since the disproportionate asset case will have its own circumstances which may or may not, be linked to the first case. Consequently, this prayer for quashing of the FIR No. 06/2012, dated 25.05.2012 is found to be unmerited and accordingly the writ petition is dismissed." 10. Before we advert to the two FIR’s, it would be apposite to refer to the relevant provisions of the Code of Criminal Procedure, 1973 (Cr.P.C.). 11. Section 154 deals with information in cognisable cases. Though the expression First Information Report (FIR) is not mentioned in the Cr.P.C., particularly in Section 154, the information referred to in sub-section (1) of Section 154 is the First Information Report. 11. Section 154 deals with information in cognisable cases. Though the expression First Information Report (FIR) is not mentioned in the Cr.P.C., particularly in Section 154, the information referred to in sub-section (1) of Section 154 is the First Information Report. This section says that every information relating to commission of a cognisable offence, if given orally to an officer in-charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it; substance of which shall be entered in a book to be maintained by such officer. 12. Thus the requirement of sub-section (1) is that : - (i) Every information relating to commission of a cognisable offence, if given orally shall be reduced to writing by the officer in-charge of a police station or under his direction; (ii) After it is reduced to writing or where the information is in written form shall be read over to the informant; (iii) Such information whether given in writing or reduced to writing shall be signed by the person given it; (iv) substance of which information shall be entered in a book to be maintained by such officer. 13. As per sub-section (3), if an officer in-charge of a police station refuses to record the information as per sub-section (1), the aggrieved person may send copy of such information, in writing and by post, to the jurisdictional Superintendent of Police. If the said Superintendent of Police is satisfied that the information discloses commission of cognisable offence, he shall either himself investigate the case or direct a police officer sub-ordinate to him to conduct the investigation. 14. section 162 of the Cr.P.C., 1973 says that statement to police not to be signed and deals with use of such statement in evidence. After conclusion of investigation, which should be completed without unnecessary delay, the concerned police officer should submit report under Section 173, though under sub-section (8) thereof, further investigation is permissible. 15. The issue that there can be no second FIR in respect of the same subject matter came up for consideration before the Supreme Court in Ram Lal Narang v. State (Delhi Administration), reported in (1979) 2 SCC 322 . 15. The issue that there can be no second FIR in respect of the same subject matter came up for consideration before the Supreme Court in Ram Lal Narang v. State (Delhi Administration), reported in (1979) 2 SCC 322 . While dealing with that case, Supreme Court indicated that the real question was whether the two conspiracies were in truth and substance the same. In the facts of that case, it was held that the conspiracies in the two cases were not identical; therefore, Supreme Court declined to interfere in the second investigation. 16. In TT Antony v. State of Kerala, reported in (2001) 6 SCC 181 , Supreme Court examined the decision in Ram Lal Narang (supra) and also considered the scheme of sections 154, 162 and 173 Cr.P.C., 1973 as well as other related provisions and thereafter held that 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 cognisable offence or the same occurrence or incident giving rise to one or more cognisable offences. 17. This issue again cropped up in Babubhai v. State of Gujarat, reported in (2010) 2 SCC 254 . Supreme Court held that the investigating agency has to proceed only on the information about commission of a cognisable offence which is first entered in the police station diary by the officer-in-charge and all other subsequent information would be covered by Section 162 Cr.P.C., 1973 for the reason that it is the duty of the Investigating Officer not merely to investigate the cognisable 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 the Investigating Officer has to file one or more reports under Section 173 Cr.P.C., 1973 Proceeding further, Supreme Court held that it is quite possible that more than one piece of information may be given to the officer in-charge of the police station in respect of the same incident involving one or more than one cognisable offence. In such a case, he need not enter each piece of information in the diary. In such a case, he need not enter each piece of information in the diary. All other information given orally or in writing after commencement of investigation on the basis of the first information report will be statements falling under Section 162 Cr.P.C., 1973 Explaining further, Supreme Court held that in such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness has to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence. If the answer is in the affirmative, the second FIR is liable to be quashed but if the contrary is proved, where the version of the second FIR is different and relates to a different incident/crime, the second FIR is permissible. 18. In Amitbhai Anilchandra Shah v. Central Bureau of Investigation, reported in (2013) 6 SCC 348 , this question relating to filing of second FIR again came up for consideration. Reiterating the legal position, Supreme Court held that a second FIR in respect of an offence or different offence committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In that case, the second FIR was quashed. 19. This position was reiterated in Anju Chaudhary v. State of Uttar Pradesh, reported in (2013) 6 SCC 384 , where the Supreme Court held that the Court in order to examine the impact of one or more FIRs has to rationalise the facts and circumstances 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 relate to different occurrences. 20. Having noticed the above, let us examine the first FIR being FIR No. RCSHG2010A0003, dated 13.05.2010. As discussed above, investigation into this FIR was complete where after, charge sheet was submitted on 21.12.2011. As per the charge sheet, appellant in criminal conspiracy with Sri. Mohet Hojai, Shri Debasish Bhattacharjee, Shri Brojendra Chandra Dey, Shri Amjad Hussain (brother-in-law), Shri Amjad Ali @ CRP and Smti. Raihana Ahmed (wife) and by abusing his official power/position had fraudulently and dishonestly misappropriated funds to the tune of Rs. As per the charge sheet, appellant in criminal conspiracy with Sri. Mohet Hojai, Shri Debasish Bhattacharjee, Shri Brojendra Chandra Dey, Shri Amjad Hussain (brother-in-law), Shri Amjad Ali @ CRP and Smti. Raihana Ahmed (wife) and by abusing his official power/position had fraudulently and dishonestly misappropriated funds to the tune of Rs. 13,53,29,001.00 from various schemes of the Social Welfare Department, Government of Assam during the year 2008-09 and thereby caused huge wrongful loss to the Government of Assam to the tune of Rs. 13,53, 29,001.00 and corresponding wrongful gain to him and to the other co-accused. This amount of Rs. 13,53,29,001.00 included an amount of Rs. 13,45,98,000.00 recovered by the Central Bureau of Investigation from the secret chamber in the garage of Shri Amjad Hussain (brother-in-law of the appellant) in the denomination of Rs. 1,000.00 and Rs. 500.00 of hard Indian currency notes. Accordingly, the appellant and the others were charged under Sections 120B, 409, 420, 468, 471 IPC read with Sections 13 (2) and 13 (1) (c) & (d) of the Prevention of Corruption Act, 1988. 21. The second FIR was registered following a self-contained note of the Central Bureau of Investigation on the basis of which Government of Assam in the Political (A) Department instructed the Director, Vigilance and Anti Corruption to register a case under the Prevention of Corruption Act, 1988 against the appellant for acquiring assets disproportionate to his known source of income. 22. This resulted in filing of the second FIR No. 06 dated 25.05.2012. It was mentioned that the officer in question i.e., the appellant had acquired disproportionate properties worth Rs. 14,02,09,943.00, including hard cash of Rs. 13,45,98,000.00, which is grossly disproportionate to his known sources of income. 23. The hard cash of Rs. 13,45,98,000.00 is relatable to the charge sheet filed pursuant to the first FIR because this was the amount recovered from the secret chamber in the garage of appellant's brother-in-law Amjad Hussain. To that extent, there may appear a linkage with the first FIR. But the amount involved in the second FIR is substantially more than the amount referred to in the first FIR. If the amount of Rs. 13,45,98,000.00 is deducted from Rs. 14,02,09,943.00 which is the worth of the alleged disproportionate assets, a further amount of Rs. 56,11,943.00 is available. 24. But the amount involved in the second FIR is substantially more than the amount referred to in the first FIR. If the amount of Rs. 13,45,98,000.00 is deducted from Rs. 14,02,09,943.00 which is the worth of the alleged disproportionate assets, a further amount of Rs. 56,11,943.00 is available. 24. On a careful perusal of the self contained note of the Central Bureau of Investigation, we find that this amount comprises of amounts under two heads as under: - (i) Immovable assets - Rs. 34,70,000.00 (this includes RCC buildings and plots of land). (ii) Movable assets - Rs. 21,41,943.00 (this includes vehicles). 25. Learned Single Judge carefully considered the two FIRs and found that while charge in the first case was misappropriation of Government money by wrongful means, the accusation in the second case relates to possessing disproportionate assets beyond the known sources of income. 26. Therefore, it may not be correct to say that the two cases arise out of the same transaction or that the second FIR would stand vitiated on account of sameness of offence. Admittedly, an amount of Rs. 56,11,943.00 covered by the second FIR relates to the charge of disproportionate assets beyond the known source of income which is not the same as the accusation under the first FIR. 27. In such circumstances, view taken by the learned Single Judge cannot be said to be erroneous to warrant interference. 28. Resultantly, we are not inclined to interfere with the finding returned by the learned Single Judge and to quash the second FIR. 29. Writ appeal is accordingly dismissed. No costs.