Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 77 (GUJ)

VRUJESHKUMAR HEMAJI UMAT v. STATE OF GUJARAT

2018-01-11

J.B.PARDIWALA

body2018
JUDGMENT : 1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused seeks to invoke the inherent powers of this Court, praying for quashing of the FIR being CR-I No.14 of 2014 registered with the ACB Police Station, Rajkot city, Rajkot, for the offences punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. The facts giving rise to this application may be summarised as under : The applicant is a public servant serving as the Deputy Engineer, Class-II. First in point of time, an FIR came to be registered against the applicant herein bearing CR-I No.3 of 2014 before the Rajkot ACB Police Station for the offences punishable under Sections 7, 12, 13(1)(d) read with Section 13(2) of the Act, 1988. This FIR got registered on 2nd May 2014. While the FIR for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act, 1988, was being investigated, a search was carried out at the residential house of the applicant. In the course of the search, the investigating agency recovered and seized materials in the form of policy certificates, cash and jewellery. This, ultimately, led to filing of an FIR for the offence punishable under Section 13(1)(e) of the Act, 1988, which is the subject matter of this petition. 3. The FIR in question is sought to be quashed principally on the ground that the same is a second FIR and there is an element of sameness and, therefore, not maintainable. 4. The principal argument of the learned counsel appearing for the applicant is that during the course of the investigation of the FIR registered first in point of time if something is recovered in the form of assets disproportionate to the known sources of income, then the second FIR for the offence punishable under Section 13(1)(e) read with Section 13(2) of the Act, 1988, could not have been filed. To put it in other words, the contention is that Section 13(1)(e) could have been added in the first FIR itself. 5. Mr.Dagli, the learned counsel appearing for the applicant, placed strong reliance in support of his submissions on the decision of the Supreme Court in the case of Amitbhai Anilchandra Shah v. C.B.I. and another, (2013)6 SCC 348 . To put it in other words, the contention is that Section 13(1)(e) could have been added in the first FIR itself. 5. Mr.Dagli, the learned counsel appearing for the applicant, placed strong reliance in support of his submissions on the decision of the Supreme Court in the case of Amitbhai Anilchandra Shah v. C.B.I. and another, (2013)6 SCC 348 . Mr.Dagli also placed reliance on one another decision of the Supreme Court in the case of T.T.Antony v. State of Kerala and others, (2001)6 SCC 181 . 6. In such circumstances referred to above, the learned counsel prays that there being merits in this application, the same be allowed and the FIR be quashed. 7. On the other hand, this application has been vehemently opposed by Mr.D.M.Devnani, the learned APP appearing for the State. Mr.Devnani invited my attention to the provisions of Section 13 of the Act, 1988. He submits that the offence under Section 13(1)(d) of the Act, 1988, is distinct than the offence under Section 13(1)(e) of the Act, 1988. The learned APP further submitted that as both the offences are distinct and different, those cannot be clubbed and tried together. The learned APP submitted that in a case involving Section 13(1)(e) of the Act, 1988, what is necessary is as to whether keeping in view the period in question, commonly known as the check period, the public servant has acquired wealth which is disproportionate to his known sources of income. It has nothing to do with an individual case of bribery, i.e. demand and acceptance of illegal gratification. It has nothing to do with a series of acts culminated into an offence. Besides the same, according to the learned APP, in a case under Section 13(1)(e) of the Act, 1988, once the ingredients of the offence are established by the prosecution, the burden of proof shifts on the accused persons to account for a pecuniary resources and the properties found in his possession in the relevant check period. However, in cases where the public servant is alleged to have taken illegal gratification, the burden of proof under Section 13(1)(d) of the Act, 1988, is on the prosecution and not on the accused. Hence, the approach of the prosecution in both the cases will be different and independent. 8. However, in cases where the public servant is alleged to have taken illegal gratification, the burden of proof under Section 13(1)(d) of the Act, 1988, is on the prosecution and not on the accused. Hence, the approach of the prosecution in both the cases will be different and independent. 8. In such circumstances referred to above, the learned APP prays that there being no merit in this application, the same be rejected. 9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the FIR should be quashed. 10. For appreciating the rival submissions, I find it convenient to refer first to Section 13 of the Prevention of Corruption Act, 1988. It reads thus : "13. 9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the FIR should be quashed. 10. For appreciating the rival submissions, I find it convenient to refer first to Section 13 of the Prevention of Corruption Act, 1988. It reads thus : "13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,-- (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or (d) if he,-- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) if he 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. Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four year] but which may extend to [ten years] and shall also be liable to fine." 11. It is to be noted that Section 13(1)(e) has its own significance in the context of the range of offences provided under the 1988 Act. Section 13(1)(e) covers a period which is called check period. It pertains to amassing of disproportionate assets. The condition precedent is that the accused is prima facie found in possession of disproportionate properties or possessing resources not known to his sources of income. It is obligatory on the part of the accused in that case to explain his sources, which has been the basis for accumulating the assets which are alleged to be disproportionate. The offences under Sections 13(1)(a) to (d) in a broad way can be called incident specific or situation-specific whereas the offence under Section 13(1)(e) is period-specific and it is not incident-specific. There can be different check periods. A person holding high public office or political office has opportunities to accumulate disproportionate assets other than his known sources of income.(Vide Yogendra Kumar Jaiswal and others v. State of Bihar and others, (2016)3 SCC 183). 12. A Division Bench of the Bombay High Court (Nagpur Bench), in the case of Bhaskar s/o Pandurang Walimbe v. The State of Maharashtra, Criminal Application (Apl) No.260 of 2015, decided on 29th June 2015, had the occasion to consider the very same issue. The Court took the view that the investigation into both the misconducts or offences warrants different perspective and has to be totally distinct, the prosecution can try the accused independently of each other. 13. I may quote the relevant observations thus : "9. We find that the judgment of the Hon'ble Supreme Court in the case of "Amitbhai Anilchandra Shah V/s. The Central Bureau of Investigation and Anr." (2013) 6 SCC 348 , shows that in respect of the alleged murder of Sohrabuddin and his wife Kausarbi on 26.11.2005 and 29/30.11.2005 respectively, one charge sheet came to be filed on 23.07.2010. We find that the judgment of the Hon'ble Supreme Court in the case of "Amitbhai Anilchandra Shah V/s. The Central Bureau of Investigation and Anr." (2013) 6 SCC 348 , shows that in respect of the alleged murder of Sohrabuddin and his wife Kausarbi on 26.11.2005 and 29/30.11.2005 respectively, one charge sheet came to be filed on 23.07.2010. About subsequent killing of an associate of Sohrabuddin namely Tulsiram Prajapati on 28.12.2006, another charge sheet was filed on 04/09/2012. Charge sheet dated 23.7.2010 filed by the CBI in the first FIR, the CBI had mentioned that the killing of Tulsiram Prajapati was a part of the very same conspiracy. The Apex Court has, in this background, observed that a second FIR for an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. It held that the killing of Tulsiram Prajapati was a part of the same series of acts in which Sohrabuddin and Kausarbi have been killed. Therefore, the second F.I.R. filed in respect of murder of Tulsiram Prajapati was quashed. But then it is important to note that the Hon'ble Apex Court did order that the charge sheet filed on 04/09/2012, in pursuance of the second F.I.R., be treated as a supplementary charge sheet in the first F.I.R. T.T. Anthony Vs. State of Kerala and Ors. - AIR 2001 SC 2637 = (2001) 6 SCC 181 & Babubhai v. State of Gujarat (2010) 12 SCC 254 are the other judgments cited before us. These also find consideration in this case by Hon'ble Court in paragraph 38 where "consequence test" is also applied. Hence, we find it appropriate to reproduce it here -- "38. Mr Raval, learned ASG, by referring T.T. Antony submitted that the said principles are not applicable and relevant to the facts and circumstances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. The learned ASG further pointed out that in the present case, there are two distinct incidents/occurrences, inasmuch as one being the conspiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati -- a potential witness to the earlier conspiracy to murder Sohrabuddin. The learned ASG further pointed out that in the present case, there are two distinct incidents/occurrences, inasmuch as one being the conspiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati -- a potential witness to the earlier conspiracy to murder Sohrabuddin. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making registration of fresh FIR impermissible and violative of Article 21 of the Constitution is reiterated and reaffirmed in the following subsequent decisions of this Court: (1) Upkar Singh v. Ved Prakash, (2) Babubhai v. State of Gujarat, (3) Chirra Shivraj v. State of A.P., and (4) C. Muniappan v. State of T.N. In C. Muniappan this Court explained the "consequence test" i.e. if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR." 10. The Hon'ble Apex Court in T.T. Anthony Vs. State of Kerala and Ors. (supra) in para 18 (para 20 of SCC) observes - "On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the F.I.R. 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 of the Cr. P.C." In paragraph 18 (SCC), Hon'ble Court states :-- "Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report - F.I.R. postulated by Section 154 of Cr. P.C." In paragraph 18 (SCC), Hon'ble Court states :-- "Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report - F.I.R. postulated by Section 154 of Cr. P.C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Cr. P.C. No such information/statement can properly be treated as an F.I.R. and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr. P.C." 11. In V.K. Puri vs. Central Bureau of Investigation, reported at (2007) 6 SCC 91 = (2007) 6 Mah. L.J. (SC) 751, while examining the issue of territorial jurisdiction of a special court and holding that situs of the property may or may not be decisive, Hon'ble Apex Court also pointed out the ingredients of S.13(1)(e) of 1988 Act. The same are- (i) the accused is public servant, (ii) the nature and extent of the pecuniary resources of property found in his possession, (iii) his known sources of income i.e. known to prosecution, (iv) such resources or properties found in possession of accused were disproportionate to his known source of income. Once these ingredients are proved, the burden shifts to accused to show that the prosecution case is not correct. Hon'ble Apex Court further points out that in a case involving Section 13(1) (e) of the 1988 Act, keeping in mind the period in question i.e. check period, investigation has to be whether the public servant did acquire wealth disproportionate to his known sources of income. It has no bearing on individual instance/s of bribery. It has nothing to do with a series of acts culminated into an offence. We find that offences or misconducts in clauses (a) to (e) of S.13(1) are distinct from each other though they have been clubbed together under section 13 as acts of "Criminal misconduct by a public servant". It has no bearing on individual instance/s of bribery. It has nothing to do with a series of acts culminated into an offence. We find that offences or misconducts in clauses (a) to (e) of S.13(1) are distinct from each other though they have been clubbed together under section 13 as acts of "Criminal misconduct by a public servant". Out of all the offences under sub-section (1) clauses (a) to (e), only an offence under clause (e) mandates calling of an explanation from accused as an ingredient and this requirement cannot be extended to the offence under clause (d). 12. Thus, it can be seen that an offence or a criminal misconduct in S.13(1)(e) is distinct from that under S.13(1)(d) of the Prevention of Corruption Act,1988. A person accused under S.13(1)(d) with reference to a single incidence or more such specified instances may be exonerated of the same but still be punished under S.13(1)(e). Vice-versa, though acquitted under it, still possibility of his being punished under the other clauses for other criminal misconduct/s cannot be ruled out, provided there exists disproportionate property. Trials under S.13(1)(d) & S.13(1)(e) are not dependent on each other for their sustainability, though part of evidence to be lead therein may be common or overlapping. Need of having a joint trial or clubbing thereof due to possible impact of material coming on record therein on the other trial are not the issues relevant at this stage. Parties have rightly not made any such effort. Obtaining for himself or for any other person any valuable thing or pecuniary advantage in manner as prohibited in S.13(1) (d), either once or on more than one occasion is relevant under said provision and person found guilty therefor may not be possessing any assets or then, disproportionate assets at all. Still he can be punished for such misconduct. Such misconduct may be either a single transaction or more than one transaction. On the other hand, criminal misconduct falling under clause (e) can be proved by demonstrating the assets which are disproportionate to accused's known sources of income. Thus, such person need not be found to have indulged in any other criminal misconduct under other clauses of S.13(1) of the 1988 Act. Ingredients of S.13(1)(e) are unique and not relevant under S.13(1)(d). Offences under S.13(1)(d) & S.13(1)(e), therefore, cannot be said to be committed as a part of the same transaction. Thus, such person need not be found to have indulged in any other criminal misconduct under other clauses of S.13(1) of the 1988 Act. Ingredients of S.13(1)(e) are unique and not relevant under S.13(1)(d). Offences under S.13(1)(d) & S.13(1)(e), therefore, cannot be said to be committed as a part of the same transaction. To prove guilt under S.13(1)(e), the prosecution need not prove involvement of the person in any other "criminal misconduct" under other clauses of S.13(1) of the P.C. Act, 1988. Converse proposition is also good. Thus there is no question of same transaction and scope to apply "consequence test". 13. In the case of Ashok S/o Sopan Patil Vs. State of Maharashtra & Ors., reported at 2015 (3) LJSOFT 82, the Division Bench of this Court has found that earlier FIR was registered at the instance of the auditor against the Chairman and Directors of the society for illegally sanctioning and disbursing loan due to audit conducted for the period from 1/4/2007 to 31/3/2009. Subsequent complaint was based upon outcome of audit made for the period 2011-12 and hence, cannot be termed as second FIR. Both the complaints were registered on the basis of two different complaints and based upon altogether different facts. Thus, when misappropriation coming to light is entirely different and not connected with earlier one, the "consequence test" is not attracted. Therefore, lodging of a separate FIR for it is not viewed as second FIR. 14. In present case, looking to the nature of challenge, it is not necessary to go into niceties of either of the FIRs. Fact that the FIRs are under different provisions is not in dispute and whether facts mentioned therein constitute the offence or not is not the debate here. Earlier FIR bearing No. 3178 of 2014 dated 18.07.2014 against the Applicant is for alleged demand and acceptance of bribe, a transaction complete in itself under S.13(1)(d) and not having any bearing on later FIR No. 3073 under S.13(1) (e) lodged on 25.03.2015. Investigation into both the misconducts or offences warrants different perspective and has to be totally distinct and unconcerned with each other. It has no bearing on each other and failure or success of the prosecution to establish guilt in one FIR cannot eclipse its investigation into the other. Later FIR, therefore, is not a second FIR at all. Investigation into both the misconducts or offences warrants different perspective and has to be totally distinct and unconcerned with each other. It has no bearing on each other and failure or success of the prosecution to establish guilt in one FIR cannot eclipse its investigation into the other. Later FIR, therefore, is not a second FIR at all. It does not form part of same transaction in this case." 14. The very same issue fell for the consideration before a learned Single Judge of the Delhi High Court in the case of Virbhadra Singh and another v. Central Bureau of Investigation and others, Writ Petition (Criminal) No.2757 of 2015, decided on 31st March 2017. I may quote the relevant observations made in the said judgment thus : "122. A perusal of the First PE shows that the same pertains to the possible commission of offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the PC Act, but certainly not to the offence under Section 13(1)(e) read with Section 13(2) of the said Act. Moreover, it was directed against unknown officials of State Trading Corporation, New Delhi, unknown officials of M/s IIL and other unknown persons. The Second PE was registered on 17.06.2015 since the “unexplained income” of petitioner no.1 gave “rise to a strong suspicion of the same being ill-gotten wealth/ assets, disproportionate to the known sources of income of Shri Vir Bhadra Singh acquired during the period 2009-11 when he was the Union Minister of Steel.”. Consequently, the Inspector of the CBI “requested that a Preliminary Enquiry may please be registered for fixing an appropriate check period and accounting for the incomes, assets and expenditure of Shri Virbhadra Singh to examine whether or not a viable Disproportionate Assets (DA) case is made out against him during the period when he was Union Minister in GOI.”. As a result of this exercise, the Second PE was “registered for fixing an appropriate check period and accounting for the incomes, assets and expenditure of Shri Vir Bhadra Singh, to examine whether or not a viable Disproportionate Assets (DA) case is made out against him during the period when he was Union Minister in GOI.”. 123. As a result of this exercise, the Second PE was “registered for fixing an appropriate check period and accounting for the incomes, assets and expenditure of Shri Vir Bhadra Singh, to examine whether or not a viable Disproportionate Assets (DA) case is made out against him during the period when he was Union Minister in GOI.”. 123. The possible offence under enquiry in the First Preliminary Enquiry necessarily involved officers of M/s IIL, since it was alleged that the illegal gratification was paid to officers of STC and other unknown persons by them. However, the Second PE was registered and undertaken in respect of a possible offence under Section 13(1)(e) read with Section 13(2) of the PC Act while petitioner no.1 was serving as a Central Minister in Delhi. 124. The said two offences are distinct and different. They may, or may not, overlap. They were not found to be connected, or part of the same transaction. In R. Vasudevan (supra) this Court was dealing with the petitioner’s plea for joint trial of two cases – one under Section 13(2) r/w S. 13(1)(e) of the PC Act, and the other under Sections 7,8,12 r/w S. 13(2) and S. 13(1)(d) of the PC Act, further read with Section 120 B IPC. This Court did not direct the joint trial of the said cases by observing that the ingredients of the two cases are different. Reference was also made to V.K. Puri (supra). This Court, inter alia, observed: 9. In the present case, it was contended by the learned counsel for the petitioner that, as both the offences under Section 13(1)(d) and Section 13(1) (e) PC Act are punishable under Section 13(2) PC Act, hence they shall be considered to be of the same kind in view of Section 219 CrPC and be tried together. This contention of the learned counsel for the petitioner is misplaced and misconceived. The offences under Section 13(1)(d) and 13(1)(e) of the PC Act, although relate to the same subject, are distinct in their application and ingredients. 10. In the case of V.K. Puri v. CBI (2007) 6 SCC 91 , the Hon'ble Supreme Court held thus, “9. A distinction exists between a case filed under Sections 13(1)(c) and 13(1)(d) of the 1988 Act, on the one hand, and Section 13(1) (e) thereof, on the other. 10. In the case of V.K. Puri v. CBI (2007) 6 SCC 91 , the Hon'ble Supreme Court held thus, “9. A distinction exists between a case filed under Sections 13(1)(c) and 13(1)(d) of the 1988 Act, on the one hand, and Section 13(1) (e) thereof, on the other. Ingredients of the offence under Section 13(1)(e) of the 1988 Act are: (i) The accused is a public servant; (ii) The nature and extent of the pecuniary resources of property found in his possession; (iii) His known sources of income, i.e., known to the prosecution. (iv) Such resources or properties found in possession of the accused were disproportionate to his known sources of income. Once, however, the aforementioned ingredients are established by the prosecution, the burden of proof would shift on the accused to show that the prosecution case is not correct. 13. In a case involving Section 13(1)(e) of the 1988 Act, what is necessary is as to whether keeping in view the period in question, commonly known as check period, the public servant has acquired wealth which is disproportionate to his known sources of income. It has nothing to do with individual case of bribery. It has nothing to do with a series of acts culminated into an offence. Each Court, where a part of the offence has been committed, would, therefore, be entitled to try an accused”. 11. Further, in a case under Section 13(1)(e) PC Act, once the ingredients of the offence are established by the prosecution, the burden of proof, shifts on the accused person to account for the pecuniary resources and properties found in his possession in the relevant check period. However, in cases where the public servant is alleged to have taken illegal gratification, the burden of proof to prove the offence under Section 13(1)(d) of the PC Act is on the prosecution and not on the accused. Hence, the approach of the prosecution, in both the cases will be different and independent.” 15. The offence of acquisition of disproportionate assets under Section 13 (1)(e) r/w Section 13(2) of the PC Act may, or may not be, linked to a case under Section 7 and 13(1)(d) r/w S. 13(2) of the PC Act. Thus, when the First PE was registered, there was absolutely no material available with the CBI to suspect the commission of any offence by petitioner no. Thus, when the First PE was registered, there was absolutely no material available with the CBI to suspect the commission of any offence by petitioner no. 1, much less the commission of the offence under Section 13(2) read with Section 13(1) (e) of the PC Act. The information received by the CBI – in the form of representation of Mr. Prashant Bhushan or the Common Cause PIL with regard to link up between IIL and petitioner no. 1 could not be established. However, the preliminary enquiry did suggest the commission of the offence under Section 13(2) read with 13(1)(e) of the PC Act. Thus, the Second PE was registered to fix the check period. 125. Reliance placed by Mr. Krishnan on TT. Anthony (supra) appears to be misplaced. This is for the reason that in TT. Anthony (supra), the Court was concerned with registration of a subsequent FIR in relation to the same instance/ offence. In the present case, the CBI did not register the FIR/ RC and registered the First PE, as noted above, in relation to a possible offence involving payment of illegal gratification by officers of M/s IIL to officers of STC and other unknown persons. The same did not relate to possible commission of an offence under Section 13(1)(e) read with Section 13(2) of the PC Act. Thus, the present case does not involve registration of two FIRs/ RCs under Section 154 Cr.P.C., as only a preliminary enquiry was registered on 19.10.2012, i.e. the First PE. Since it could not be verified that payments were allegedly made by officers of M/s IIL to petitioner no.1, the said PE was closed. 126. Tapan Kumar Singh (supra) is also of no avail to the petitioners, firstly, for the reason that when the First PE was registered there was no definite information linking the alleged payments made by M/s. IIL to petitioner no.1. At that stage, the complainant of Mr. Prashant Bhushan and the Common Cause PIL were also not made. Even after they surfaced, the allegations made by Mr. Prashant Bhushan, Advocate in his representation dated 11.01.2013 seeking to link the payments of illegal gratification allegedly made by M/s IIL to “VBS” could not be established. However, what emerged during the said preliminary enquiry (after the enlargement of its scope) was that a possible case of disproportionate assets may be made out against petitioner no.1/ Sh. Prashant Bhushan, Advocate in his representation dated 11.01.2013 seeking to link the payments of illegal gratification allegedly made by M/s IIL to “VBS” could not be established. However, what emerged during the said preliminary enquiry (after the enlargement of its scope) was that a possible case of disproportionate assets may be made out against petitioner no.1/ Sh. Vir Bhadra Singh. Thus, it cannot be said that the First PE, or the complaint of Mr. Prashant Bhushan, or the Common Cause PIL could, or should have been treated as a regular case FIR. Neither of them were treated as an FIR/a regular case. Otherwise, the First PE - even after the enlargement of its scope could not have been closed by the CBI on its own. The report would, necessarily have been filed before the ld. Special Judge. That course of action was not adopted. Simultaneously, with the closing of the First PE, the Second PE was registered. 127. Reliance placed by Mr. Krishnan on Amitbhai Anilchandra Shah (supra) is also misplaced. In this case as well, initially a First Information Report had been registered in relation to the alleged offence. The State filed the charge-sheet after a gap of 3½ years. The Supreme Court vide its judgment in Narmada Bai Vs. State of Gujarat, (2011) 5 SCC 79 rejected the investigation conducted/ concluded by the State police and directed the State police authorities to handover the case to the CBI. After investigation, CBI filed a fresh FIR dated 29.04.2011 against various police officials of the States of Gujarat and Rajasthan and others, for acting in furtherance of a criminal conspiracy to save themselves from legal consequences of their crime by causing disappearance of human witness, i.e. Tulsiram Prajapati by murdering him on 28.12.2006 and showing it off as a fake encounter. In the said case, the charge-sheet dated 04.09.2012 was filed before the Court of the Judicial Magistrate First Class. The petitioner was aggrieved by the registration of the fresh FIR dated 29.04.2011 and the filing of the charge-sheet dated 04.09.2012, since he was arrayed as A-1 in the said charge-sheet. The Supreme Court observed that the prayer in the writ petition shows that the petitioner was not seeking quashing of the investigation. The petitioner was aggrieved by the registration of the fresh FIR dated 29.04.2011 and the filing of the charge-sheet dated 04.09.2012, since he was arrayed as A-1 in the said charge-sheet. The Supreme Court observed that the prayer in the writ petition shows that the petitioner was not seeking quashing of the investigation. He only sought quashing of the second FIR dated 29.04.2011 and also prayed that the charge-sheet dated 04.09.2012 filed in respect of the said subsequent FIR be treated as a supplementary charge-sheet in the first FIR being RC No.4S/2010. 128. At this stage itself, I may observe that in the present case, the petitioners are seeking quashing of the RC/ FIR, which is the only RC/ FIR registered. Thus, on facts, the situation dealt with by the Supreme Court in Amitbhai Anilchandra Shah (supra), the situation arising in the present is the entirely different since, in the present case, there is only one RC/ FIR registered. The conclusions drawn by the Supreme Court in Amitbhai Anilchandra Shah (supra) read as follows: “Conclusion 59. In the light of the specific stand taken by CBI before this Court in the earlier proceedings by way of assertion in the form of counter-affidavit, status reports, etc. we are of the view that filing of the second FIR and fresh charge-sheet is violative of fundamental rights under Articles 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted CBI's plea that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and in spite of the fact that this Court directed CBI to “take over” the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment. 60. In view of the above discussion and conclusion, the second FIR dated 29-4-2011 being RC No. 3(S)/2011/Mumbai filed by CBI is contrary to the directions issued in judgment and order dated 8-4- 2011 by this Court in Narmada Bai v. State of Gujarat [ (2011) 5 SCC 79 : (2011) 2 SCC (Cri) 526] and accordingly the same is quashed. In view of the above discussion and conclusion, the second FIR dated 29-4-2011 being RC No. 3(S)/2011/Mumbai filed by CBI is contrary to the directions issued in judgment and order dated 8-4- 2011 by this Court in Narmada Bai v. State of Gujarat [ (2011) 5 SCC 79 : (2011) 2 SCC (Cri) 526] and accordingly the same is quashed. As a consequence, the charge-sheet filed on 4-9-2012, in pursuance of the second FIR, be treated as a supplementary charge-sheet in the first FIR. It is made clear that we have not gone into the merits of the claim of both the parties and it is for the trial court to decide the same in accordance with law. Consequently, Writ Petition (Crl.) No. 149 of 2012 is allowed. Since the said relief is applicable to all the persons arrayed as accused in the second FIR, no further direction is required in Writ Petition (Crl.) No. 5 of 2013.” 129. These conclusions were drawn by the Supreme Court in the background that there was an earlier FIR in respect of the same alleged offence, which formed the subject matter of the subsequent FIR. For the same reasons, reliance placed on Babubhai (supra) by Mr. Krishnan appears to be misplaced. In this case as well, there were two FIRs registered. The Supreme Court in para 12 of this decision observed as follows: “21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted”. 130. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted”. 130. There can be no quarrel with the proposition that in relation to the same incident i.e. in respect of the same occurrence, or in regard to the incident which are two or more parts of the same transaction, a second FIR cannot be registered and, if so registered, the same shall be liable to be quashed. However, as noticed herein above, firstly, in the present case, there is only one FIR/RC registered by the CBI under Section 13(2) read with section 13(1)(e) of the PC Act and section 109 IPC. Secondly, the First PE related to possible offences under Section 7 and Section 13(2) read with section 13(1)(d) of the PC Act, and certainly not Section 13(2) read with section 13A(1)(e) of the PC Act, whereas, the Second PE relates to the possible offences under Section 13(2) read with section 13(1)(e) of the PC Act and section 109 IPC. They are not shown to be part of the same series of acts/omission or part of the same transaction." 16. What amounts to the 'same transaction' has been very succinctly explained by Hegde, J. (as His Lordship then was) in the case of C.N.Krishna Murthy v. Abdul Subhan, reported in AIR 1965 Mysore 128. Of course, the term 'same transaction' was interpreted keeping in mind Section 235 of the Code of Criminal Procedure (old Code) corresponding to Section 220 of the Code of Criminal Procedure (new Code). His Lordship observed thus : "The word 'transaction' is not intended to be interpreted in any artificial or technical sense; commonsense and ordinary use of language must decide whether on the facts of a particular case, one is concerned with one transaction or several transactions. In order that a series of acts be regarded as the same transaction, they must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action. Proximity of time and unity of place are not essential though they furnish good evidence of what unites several acts. Proximity of time and unity of place are not essential though they furnish good evidence of what unites several acts. The main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end either by attainment of the object or by being put an end to or abandoned, If any of these things happens and the whole process is begun over again it is not the same transaction but a new one in spite of the fact that the same general purpose may continue. The vinculum juris which interlinks a series of acts so intimately as to form the same transaction is different in each case, It may be proximity of time and place, or continuity of action, or community of purpose and design, or relation of cause and effect, or that of principal and subsidiary." 17. Therefore, it is clear, to constitute same transaction, the series of acts alleged against the accused must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action and the main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end. It is, therefore, necessary to find out whether the offences alleged against the accused could be stated to be one committed during the same transaction. 18. The law recognizes a common trial or a common FIR being registered for one series of acts so connected together as to form the same transaction as contemplated under Section 220 Cr.P.C. The expression 'same transaction', from its very nature, is incapable of exact definition (Anju Chaudhary (supra); Mohan Baitha v. State of Bihar, (2001)4 SCC 350 ). The distinction between two FIRs relating to the same incident, and two FIRs relating to different incidents or occurrences of the same incident, should be carefully examined (Babubhai v. State of Gujarat, (2010)12 SCC 254 ). The distinction between two FIRs relating to the same incident, and two FIRs relating to different incidents or occurrences of the same incident, should be carefully examined (Babubhai v. State of Gujarat, (2010)12 SCC 254 ). The merits of each case must be considered to determine whether a subsequently registered FIR is a second FIR relating to the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court to lay down one straight jacket formula uniformly applicable to all cases. This will always be a mixed question of law and fact depending on the merits of a given case (Anju Chaudhary (supra)). The test, to determine whether two FIRs can be permitted to exist, is whether the two incidents are identical or not (Ram Lal Narang v. State (Delhi Administration), (1979)2 SCC 322 ). 19. The concept of 'sameness' has been given a restricted meaning. In order to examine the impact of one or more FIRs, the Court 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; and whether they are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. It is only if the second FIR relates to the same cause of action, the same incident, there is sameness of occurrence and an attempt has been made to improvise the case, would the second FIR be liable to be quashed. In cases where every FIR has a different spectrum, and the allegations made are distinct and separate, it may be regarded as a counter complaint, but it cannot be stated that an effort has been made to improve the allegations that find place in the first FIR or that the principle of 'sameness' is attracted. (Babubhai (supra); Surendra Kaushik v. State of Uttar Pradesh, 2013 Cri L.J. 1570). 20. In view of the above, I have reached to the conclusion that there is no commonality in any of the FIRs and they emerged from different circumstances. (Babubhai (supra); Surendra Kaushik v. State of Uttar Pradesh, 2013 Cri L.J. 1570). 20. In view of the above, I have reached to the conclusion that there is no commonality in any of the FIRs and they emerged from different circumstances. It is not possible for me to take the view that they form part of the same transaction and, therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial. 21. In view of the aforesaid discussion, this application fails and is accordingly rejected.