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2019 DIGILAW 506 (ORI)

Akhaya Kumar Behera v. State of Orissa

2019-08-05

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. The above noted revisions have been filed questioning the legality and propriety of the order dated 24.8.2015 passed by the learned Special Judge Vigilance, Cuttack in T.R. Case No. 28 of 2015 arising from Cuttack Vigilance P.S. Case No. 57 of 2008 as at Annexure-10. By the said order, the court below has taken cognizance of the offence under section 13(1)(d) of the Prevention of Corruption Act, 1947 (in short, 'the P.C. Act') punishable under section 13(2) of the said Act and under section 468/420/120-B Indian Penal Code (for short, 'the IPC), and issued the process against these petitioners including the other accused, namely, Ramesh Kumar Mohanty. 2. The background facts relating to the case are as follows--A news item being published on 29.6.2007 in Oriya daily, "The Samaj" about the corruption concerning the works undertaken by the Cuttack Development Authority (CDA) and the silence in the matter, it came to be placed before this Court in OJC No. 6721 of 1999 seeking a direction for investigation by the Vigilance Department. This Court, having taken up that application, took cognizance of the allegations made therein. Having called for necessary response from different quarters, finally, on 02.01.2008, passed the following order: "14. Pursuant to the direction contained in order no. 209 dated 29.6.2007, the Vice-Chairman of the CDA has filed an affidavit stating in paragraphs 6 and 7 thus: "6. That it is apt to state here that the agency was given escalation due to enhancement of labour component only in order to ensure compliance of the provision of Minimum Wages Act, fair wages clauses in the agreement and various circulars issued by Government time to time. In view of the withdrawal of the escalation clause the Contractor was not entitled to get the escalation on any other reasons or ground including cost of material, POL and etc. Any apprehension contrary to the same as has been published in the newspapers seems to have been based on mere surmises and bears no semblance of truthfulness. 7. That the agency was awarded execution of Sector 11 at a value of Rs. 7,37,15,451/-. Work order was issued on 6.5.98 with completion period of 18 months. Subsequently the Contractor was asked to execute extra quantity of work in view of the conversion of the group housing areas the residential one which delayed the period of execution. 7. That the agency was awarded execution of Sector 11 at a value of Rs. 7,37,15,451/-. Work order was issued on 6.5.98 with completion period of 18 months. Subsequently the Contractor was asked to execute extra quantity of work in view of the conversion of the group housing areas the residential one which delayed the period of execution. The Super Cyclone also intervened for which the period was extended. But, however, the agency was not paid any escalation on the materials for the extended period. Government enhanced the minimum labour wages with effect from 1.5.99. In view of the statutory provisions and the fair wages clause in the agreement as well as the different circulars issued time to time the agency was extended the escalation over the labour component only for the portion of the works executed on and from the date of notification." From the aforesaid, it transpires that the agency which was executing the developmental work entrusted by the CDA, was given the escalation which was due to the enhancement of the minimum labour rates by the State Govt. and the CDA being the principal was liable to shoulder such escalated price and the payment has been made as per the entitlement. The affidavit of the CDA is accepted. In view of the aforesaid statements made on affidavit by the VC, CDA, we find no irregularity in the same calling for any investigation. The matter is closed." After this, on 17.11.2008, the Deputy Superintendent of Police, Vigilance lodged one FIR in relation to those allegations which stood numbered as Cuttack Vigilance P S. Case No. 47 of 2008 and the then Ex Vice-Chairmans and other officials of CDA as also the concerned contractor were arraigned therein as accused persons. The allegations stood regarding excess payment towards escalation for enhancement of labour rates during the period from 2000 to 2003 and sub-standard work etc being done and accepted as such as well as receipt of pecuniary advantage/benefit by all of them at the cost of the Government exchequer in relation to execution of the plotted development scheme for Sector-8, 10 and 11 of CDA. Three accused persons named in that Vigilance P.S. Case No. 47 of 2008 registered for offence under section 13(1)(d) of the P.C. Act and section 468/420/130-B of the IPC, are the two Vice-Chairmans of the CDA, the Executive Engineer and the Contractor. Three accused persons named in that Vigilance P.S. Case No. 47 of 2008 registered for offence under section 13(1)(d) of the P.C. Act and section 468/420/130-B of the IPC, are the two Vice-Chairmans of the CDA, the Executive Engineer and the Contractor. They approached this Court by filing applications under section 482 Cr.P.C. seeking quashment of FIR and the investigation, corresponding to VGR Case No. 48 of 2008 on the file of the learned CJM, Cuttack. This Court, by the judgment dated 19.2.2010 passed in CRLMC No. 2815 and 2826 of 2008 and CRLMC No. 317 of 2009, allowed those applications and the said FIR and the investigation have been quashed. The operative part of the order is as follows: "11. So, for the foregoing reasons, all these Criminal Misc. cases deserve to be allowed and the registration of the F.I.R. and subsequent investigation deserve to be quashed. Hence, all the Criminal Misc. Cases filed by the petitioners are allowed. Consequentially, the Vigilance case instituted against the petitioners and the investigation thereof are quashed." The State thereafter challenged the above order passed on 19.2.2010 in CRLMCs by filing petition for Special Leave to Appeal numbered as SLP (Crl) No. 6281 of 2010 before the Hon'ble Apex Court. On 3.5.2011, the Hon'ble Apex Court passed the following order: "Heard learned counsel for the parties. We find no merit in these petitions for special leave. Those are dismissed." 3. In the meantime, on 30.12.2008 when those proceedings under section 482 Cr.P.C. vide CRLMC Nos. 2815, 2826 of 2008 and CRLMC No. 317 of 2009 were pending before this Court, the Inspector of Police Vigilance, Cuttack lodged another FIR giving rise to Cuttack Vigilance P.S. Case No. 57 of 2008 against these petitioners and another, namely, Ramesh Kumar Mohanty, the then Executive Engineer attached to CDA, who had been arraigned as an accused in the earlier Vigilance P.S. Case No. 47 of 2008 and had filed CRLMC No. 2815 of 2008. The subject matter concerns with the corruption in execution of the work in relation to plotted development scheme in Sector-10, Bidanasi with the allegation that the officials of CDA, by abusing their official position so as to derive pecuniary advantages, have caused loss to the Government exchequer by recording inflated measurement and accepting the execution of sub-standard work leading to payment of a sum of Rs. 16,12,298/- to the contractor. 16,12,298/- to the contractor. It may be stated here that the Deputy Superintendent of Police, Vigilance, who is none other than Investigating Officer of the subsequent case, i.e., Cuttack Vigilance P.S. Case No. 57 of 2008 had filed an affidavit on 2.9.2009 before this Court in CRLMC No. 2826 of 2008 alleging sub-standard work and illegal payment of labour escalation. But that affidavit dated 2.9.2009, did not find mention of the factum of lodging of subsequent FIR giving rise to registration of Vigilance P.S. Case No. 57 of 2008 and the progress of its investigation nor there was any such hint or indication to that even though one accused, namely, Ramesh Kumar Mohanty was arraigned in the subsequent FIR. 4. Be that as it may, after closure of the matter in relation to Vigilance P.S. Case No. 47 of 2008, in becoming unsuccessful before the Hon'ble Apex Court in setting aside the order of this Court in quashing that FIR and investigation, the Superintendent of Police, Vigilance, by letter dated 21.5.2013, on completion of the investigation of that Vigilance P.S. Case No.57 of 2008, requested the Government for according sanction for prosecution against Sri Ramesh Kumar Mohanty, the then the Executive Engineer of the CDA for launching prosecution against him in the Court of law for commission of offence under section 13(2) read with section 13(1)(d) of the PC Act and section 420/468/120-B of the IPC for committing criminal misconduct, abusing official position showing undue official favour to the contractor by way of excess payment of Rs.16,12,298/-. 5. At this stage, it is pertinent to mention that after receiving the letter dated 21.5.2013, the Government in the Department of Housing and Urban Development Department by order dated 21.12.2013 constituted a Committee comprising of Chief-Engineer, (PH/Urban)-cum-Additional Secretary to Government, in the Housing and Urban Development Department and PD-cum-Joint Secretary to Government in the Housing and Urban Development Department to undertake a detailed site inspection along with verification of records regarding execution of sub-standard work in Sector-10 of CDA as well as the acceptance of the same and the inflated measurements alleged to have been done in respect of those in terms of the works undertaken. 6. The Committee, after examining the relevant records and visiting sites, finally submitted its report on 8.7.2014. 6. The Committee, after examining the relevant records and visiting sites, finally submitted its report on 8.7.2014. The relevant parts of the report touching the allegations in so far as sub-standard work, manipulation in measurement leading to excess payment of Rs. 16,12,298/- with which present case is concerned run as under:- "In consideration of the above, it is opined that:- The work was executed during 1999-2003, but the inspection by the Vigilance Department was done in the year 2007 after a lapse of 4 to 5 years, There is every possibility of varying measurement after a period of 4 to 5 years. As ascertained there was a high flood during 2'003 and there has been substantial damage in some roads in the Sector-10 also as revealed from the report of the technical committee Flag-B There is every possibility of varying in thickness of the road crust due to prolonged traffic movement and weathering condition. There will be benefit of doubt regarding the discrepancy. In one of the case in Road No. AR-1, the vigilance team have arrived at by way of calculation the thickness of Grade-I metalling is 20mm where as in the PWD specification, the thickness of Grade-I metalling varies form 45-90 mm which seems to be unrealistic. After construction of road, there has been damage during the laying/crossing of water supply pipe line, storm water drainage system and laying of sewerage line in many occasion. After a long gap of time, the field verification has been made and the marginal discrepancy that have occurred may not firmly establish as an inflated measurement. The said excess payment of Rs. 16,12,298/- contributes only 1% of the total cost of the work which is negligible as there is a difference of 4 to 5 years between the execution of work and measurement by Vigilance Technical Team. In this regard, the Commissioner-cum-DMA had a detailed discussion with M. Radhakrishnan, DSP, Vigilance and the observation of Commissioner-cum-DMA may kindly be perused at Page-29/N to 30/N. In view of the above facts, sanction of prosecution may not be considered. If considered, Govt. In this regard, the Commissioner-cum-DMA had a detailed discussion with M. Radhakrishnan, DSP, Vigilance and the observation of Commissioner-cum-DMA may kindly be perused at Page-29/N to 30/N. In view of the above facts, sanction of prosecution may not be considered. If considered, Govt. approval may kindly be obtained." Considering all the materials produced by the investigating agency and keeping in view the report as above, the Government then refused to accord sanction of prosecution against Sri Ramesh Kumar Mohanty in this Cuttack Vigilance P.S. Case No. 57 of 2008 and that was communicated to the Superintendent of Police, Vigilance, Cuttack by letter dated 6.1.2015. 7. Despite the above, the charge-sheet showing said Ramesh Kumar Mohanty, the then Executive Engineer, Prafulla Kumar Das, the then Assistant Engineer, Akshay Kumar Behera, Dillip Kumar Samal, the then Junior Engineers and Kishore Chandra Sahoo, the then Junior Engineer being filed in court, by order dated 24.8.2015, which has been impugned in these revisions, the court below has taken cognizance of the offences under section 13(1)(d)/13(2) of the P.C. Act and section 468/420/120-B of the IPC and issued process to all. Said Ramesh Kumar Mohanty then questioned the launching of the prosecution followed by the order of cognizance and issuance of process as against him by filing CRLMC No. 597 of 2016. In disposing that proceeding under section 482 Cr.P.C. filed by said Ramesh Kumar Mohanty., on 8.5.2018, this Court has passed the following order: "Accordingly, it is directed that the impugned order dated 24.8.2015 passed by the learned Special Judge Vigilance, Cuttack in T.R. Case No. 28 of 2015 taking cognizance as aforesaid so far as the present petitioner is concerned stands quashed." So, by this order, said Ramesh Kumar Mohanty the then Executive Engineer, CDA is no more within the arena of the case. Akhaya Kumar Sehera, Dillip Kumar Samal and Prafulla Kumar Das, who were serving as Assistant Engineer and Junior Engineers during the relevant period of said work and out of them, Prafulla Kumar Das, has by now retired from service are in the arena. 8. Mr. Akhaya Kumar Sehera, Dillip Kumar Samal and Prafulla Kumar Das, who were serving as Assistant Engineer and Junior Engineers during the relevant period of said work and out of them, Prafulla Kumar Das, has by now retired from service are in the arena. 8. Mr. R.K. Rath, learned Senior counsel for the petitioners submitted that in the first FIR giving rise to Cuttack Vigilance P.S. Case No. 47 of 2008, all the allegations were concerned with the plotted developmental scheme in Sector-8, 10 and 11 of the CDA that there has been indulgement of the officials of CDA in corruption not only by way of making the payment to the contractor in view of the escalation in the wage rate under the statute as against the prohibition contained in the agreement but also relating to the sub-standard work being accepted; and the inflated measurement being made for payment in excess of the work actually done in the field. He further submitted that these petitioners in that FIR had not been named as accused persons. However, said Ramesh Mohanty, the then Executive Engineer of CDA had been arraigned therein as an accused being the head of the field Engineers. According to him, when the said FIR and consequent investigation has been quashed by order of this Court in the proceedings under section 482 Cr.P.C. and it has reached its finality by the order of Hon'ble Apex Court, the subsequent FIR giving rise to Cuttack Vigilance P.S. Case No. 57 of 2008, has absolutely no foundation in the eye of law and so also the consequential investigation. He submitted that despite the fact that said Ramesh Mohanty was arraigned as an accused in the first FIR, he had again been arraigned in the present FIR but for Government's refusal to grant sanction, he is no more in the picture and let off. It was, therefore, submitted that for the self-same allegations, once the FIR having been lodged and the same has met its logical culmination as per law, another FIR on those allegations or on any part allegation form out of the earlier allegations leading to the lodging of first FIR is not tenable in the eye of law. It was, therefore, submitted that for the self-same allegations, once the FIR having been lodged and the same has met its logical culmination as per law, another FIR on those allegations or on any part allegation form out of the earlier allegations leading to the lodging of first FIR is not tenable in the eye of law. It was next submitted that the investigating agency, in the present case, has sought for grant of sanction as against said Ramesh Kumar Mohanty from the Government/and against these petitioners from the concerned Chief Engineer. He submitted that the Government upon consideration of the materials placed by the Investigating Agency and the report of the Committee constituted for the purpose given after holding the fact-finding inquiry covering all these allegations relating to sub-standard work being accepted and inflated measurement being done, thereby causing loss to the Government exchequer to the tune of Rs. 16,12,298/- by the indulgement of all these petitioners as also Ramesh Kumar Mohanty and the contractor, has refused to accord sanction for launching the prosecution against said Ramesh Kumar Mohanty, which has been accepted by this Court in passing order for quashment of the order of cognizance and issuance of process in so far as Ramesh Kumar Mohanty is concerned. So, the prosecution launched against these petitioners who stand in the same footing allegedly shouldering same liability in the matter even though is backed by a sanction granted by the Chief Engineer being the authority of the petitioners, has no legal base. Therefore, the court below ought not to have taken cognizance of the offences and issued process against these petitioners He submitted that the Investigating Authority in this case is guilty of resorting to double standard in the matter of launching of the prosecution; in one manner as against one accused without sanction who had escaped from the arena of the earlier case from the very beginning and has been let off in this case by the orders of this Court on the ground of lack of sanction which has attained finality and in so far as these petitioners-accused persons are concerned with the sanction of an authority subordinate to the authority refusing to accord sanction for said Ramesh, the prosecution being launched, they are now put to trial. It was submitted that the prosecution here is seriously guilty of suppression that during pendency of CRLMC No. 2826 of 2008, the DSP, Vigilance, in his affidavit dated 2.9.2009, when even did not indicate as to the initiation of Vigilance P.S. Case No. 57 of 2008 although the case had been registered long prior to it, i.e., on 30.12.2008 on the basis of the FIR of Inspector of Police, Vigilance. He submitted that the subsequent FIR giving rise to the case in hand, when are not based on any such discovery of new facts, the order of cognizance of offence and issuance of process in so far as these petitioners are concerned that too on the face of quashment of that very order of issuance of process against the other co-accused, namely, Ramesh Kumar Mohanty, who is alleged to have also the involvement and similar liability in the matter as has been alleged against these petitioners is vulnerable and cannot be-sustained in the eye of law. It was also submitted that admittedly, the road construction work in relation to which the present case runs was executed during the period 1999-2004 and the test check measurement was done during 2007 and now the allegations are levelled that there has been excess payment towards procurement of sand, morum, grade-I metal by inflated measurements being noted in the Measurement Book, Bills have been raised and passed. He submitted that when it is plainly seen that the roads being kept open for user for more than five years, cannot give the same measurement and quantity and taking note of all the relevant factors, the Committee has reported that these allegations are unrealistic when even the discrepancy comes to only 1% of the contract cost. He submitted that the allegations on their face value are absurd. He further submitted that the allegations when remain that there was acceptance of substandard work done by the Contractor to have been made in the year 2003 and the vigilance personnel's having test measured those works after 4 to 5 years, no fault can be seen with the view taken by the Committee that in view of some supervening events, the same is not prima facie acceptable moreso as said excess payment contributes only 1% of the total cost of the work. In this connection, he has relied upon the decision of this Court in case of Birabara Sethi Vs. State, 2012 (2) ILR Cut 1031 wherein the Court has taken judicial notice of the fact that road being constructed over four years back and under use, the measurement and quality as it had on the date when continued cannot remain the same. 9. Mr. Sangarm Das, learned Standing Counsel for the Vigilance Department does not dispute the position with regard to the quashment of the FIR giving rise to Vigilance P.S. Case No. 47 of 2008 initiated against the then Vice-Chairmans, namely, Sanjib Kumar Roy, IAS, Sanjay Rastogi, IAS and Fani Bhusan Rout, Superintendent Engineer, Ramesh Kumar Mohanty, Superintendent Engineer and M/s. K.C. Sahoo, Engineer and Contractor Private Limited. He did not dispute the fact that said Ramesh Kumar Mohanty being the accused in the first and the present case, Government in his case had refused to accord sanction and the court still having taken cognizance of offences and issued process against him, the same has been quashed by judgment of this Court passed in CRLMC No. 597 of 2016. He submitted that the attainment of finality of the order of quashment of the FIR giving rise to Cuttack Vigilance P.S. Case No. 47 of 2008 and its investigation pursuant to the same by the order of dismissal of the SLP by the Hon'ble Apex Court has no such negative impact over the present case, in the eye of law. He next submitted that the first FIR was not so concerned with the allegation as to abuse of the official position by these petitioners and the other accused Ramesh Kumar Mohanty by making illegal payment of Government money to contractor in connivance with him by accepting sub-standard work and causing inflated measurements whereas the subsequent FIR with which we are presently concerned is on pinpointed allegations and thus its lodging and the investigation cannot be found fault with. In view of above, he refuted the submission of the learned Senior counsel for the petitioners that the second FIR has no leg to stand in the eye of law. In view of above, he refuted the submission of the learned Senior counsel for the petitioners that the second FIR has no leg to stand in the eye of law. He also submitted that the Sanctioning Authority in so far as these petitioners are concerned, had no occasion to take note of the factum of the refusal of the Government to accord sanction in so far as the accused Ramesh Kumar Mohanty is concerned as that has been done much later. According to him, this is not the stage to examine the legal acceptability of the sanction as against these petitioners in view of the subsequent refusal of Government to accord sanction for prosecution against Ramesh Kumar Mohanty. In view of all the above, he submitted that the revisions are devoid of merit and as such are liable to be dismissed. 10. Proceeding to address the rival submission in the backdrop of the facts and circumstances of the case in hand and judge the sustainability of the impugned order of taking cognizance and issuance of process against these petitioners on the face of the quashment of that very order so far as the other accused who was then the Executive Engineer of the organization is concerned, it would be proper to have a look at the first FIR leading to registration of Cuttack Vigilance P.S. Case No. 47 of 2008 is concerned. It may be stated that when in the first FIR, the allegations were in respect of the works done in sectors 8,10 and 11 of the CDA, the second FIR registered as Cuttack Vigilance P.S. Case No. 57 of 2008 concerns with the allegations as to the works only in Sector-10. The allegations as regards the work in those three sectors as stated in the first FIR were the followings:- "........The above fact leads to believe that the officials of CDA have connived with the contractor, fabricated the records, executed sub-standard work and derived pecuniary advantage at the cost of the Government exchequer." 11. These allegations in the first FIR appear to be covering within its fold the allegations made in this second FIR which of course is with some more details as regards the specific works. These allegations in the first FIR appear to be covering within its fold the allegations made in this second FIR which of course is with some more details as regards the specific works. However, the name of one accused that is Ramesh Kumar Mohanty, the then Executive Engineer, CDA finds mention in common whereas in the second FIR the names of these petitioners who are the subordinate of said Ramesh Kumar Mohanty have been shown in the relevant column and in the narration their roles have been described. The fact remains that had that investigation in respect of the allegations made in the first FIR i.e. Cuttack Vigilance P.S. Case No. 47 of 2008 would have proceeded for its logical end, the allegations as levelled in the second FIR i.e. Cuttack Vigilance P.S. Case No. 57 of 2008 would have been investigated and notwithstanding the mention of the names of these petitioners, they might have been so arraigned in case of availability/surfacing of the materials against them. But that has not so happened in view of the quashment of the first FIR (Cuttack Vigilance P.S. Case No. 47 of 2008) before charge sheet filing stage by order of this Court in exercise of power under section 482 Cr.P.C. subsequently refused to be interfered by Apex Court, which in simplest term would mean ceasing the legal machinery which had been set in motion. 12. So far as the submission as also the factum of filing of the second FIR is concerned, the settled position of law is that First Information Report is a report which gives first information with regard to commission of any offence and that sets the criminal law into motion. The information so as to be registered for investigation must contain such allegations constituting commission of cognizable offence/s for being investigated to find out not only the complicity of the culprits named or hinted at therein but also all others coming to the picture in the matter of commission of offence in course of investigation. There cannot be a second FIR in respect of the same offence/event and whenever any further information is received by the Investigating Agency, it is always to be taken in furtherance to the FIR already in hand which course is no more available in the present case in view of quashment of the first FIR. 13. There cannot be a second FIR in respect of the same offence/event and whenever any further information is received by the Investigating Agency, it is always to be taken in furtherance to the FIR already in hand which course is no more available in the present case in view of quashment of the first FIR. 13. The Apex Court has consistently laid down the law on the issue that a second FIR in respect of an offence or different offences committed in course of the same transaction is impermissible in the eye of law. In T.T. Antony Vs. State of Kerala and others, (2001) 6 SCC 181 , the Hon'ble Court has categorically held that a second FIR (which is not a cross-case) is in violation of the legal provision. Paragraphs 19, 20 and 27 of the judgment read 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 sub-section (8) of Section 173 CrPC. 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. 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 sub-section (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. 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 underway 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." The position has remained undiluted. In fact, the aforesaid proposition of law making the registration of fresh FIR impermissible has been reiterated and reaffirmed in the case of (a) Upkar Singh Vs. Ved Prakash and others, (2004) 13 SCC 292 , (b) Babubhai Vs. State of Gujarat and others, (2010) 12 SCC 254 , (c) Chirra Shivraj Vs. State of Andhra Pradesh, (2010) 14 SCC 444 and (d) C. Muniappan Vs. State of Tamil Nadu, (2010) 9 SCC 567 . The Hon'ble Apex Court, in the case of C. Muniappan (Supra), has 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 the offences covered by both the FIRs are the same and accordingly, the second FIR will be impermissible in law. The offence covering both the FIRs naturally containing the allegations/informations in both shall have to be treated as one, i.e., second one has to merge with the first and that be treated as the FIR. In the case of Babulal Chaukhani Vs. King Emperor, AIR 1938 PC 130 , the Privy Council has held as under: "......that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it." In the case of Babubhai (Supra), the Hon'ble Court has considered the permissibility of more than one FIR and the test of sameness has been explained; what it means by FIR under section 154 of the Cr.P.C., commencement of investigation, formation of opinion under section 169 or 170 of the Cr.P.C., police report under section 173 of the Cr.P.C. and the statements under section 162 of the Cr.P.C. It has been held that: "......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 more parts of the same transaction." It has been further held that if the answer is in affirmative, the second FIR is liable to be quashed. It was further held that in case the contrary is proved, where the version in the second FIR is different and is in respect of the two different incidents/crimes, the second FIR is permissible It is clear therefrom that if two FIRs pertain to two different incidents/crimes, then only the second FIR is permissible. The Hon'ble Court, again in the case of Nirmal Singh Kahlon Vs. State of Punjab, (2009) 1 SCC 441 , has carved out an exception for filing a second FIR. As per that the second FIR lies in a case where the first FIR does not contain any allegation of criminal conspiracy. It is thus deduced therefrom that if the first FIR itself discloses an offence of alleged criminal conspiracy and it was that conspiracy which the Investigating Agency was obliged to investigate and unearth all the connected facts and circumstances, the Investigating Agency cannot justify the filing of the second FIR and a fresh charge-sheet. 14. Adverting to the case in hand, some striking features appear which cannot be lost sight of. 14. Adverting to the case in hand, some striking features appear which cannot be lost sight of. That when the proceeding for quashment of the first FIR giving rise to Cuttack Vigilance P.S. Case No. 47 of 2008 was pending and the second FIR had also been registered thereafter; in the affidavit filed by the Investigating Officer in those proceedings, said fact was not disclosed nor the stage of the investigation of that case had been indicated. It was also not stated that there being subsequent information relating to the said works against which all these allegations constituting the commission of the offence-by the officials of the CDA and he contractor have been made are being looked into. With such non-disclosure/suppression whatever, we may say, for the reasons known to the Investigating Agency before this Court in the proceeding, where the order of quashment of the first FIR and the investigation of the case registered on the basis of that FIR was passed and then the order being challenged by carrying the matter to the Hon'ble Apex Court, the very fact had also not been placed there and moreso in the subsequent FIR, no such reference even has also been made to the first FIR. Added to it, one of those accused persons named in the first FIR being again arraigned in the second FIR as such because of the refusal of the Government to accord sanction for prosecution on the basis of a report of the fact finding Committee ignoring the materials collected in course of the investigation; he is no more in the arena of the case after order has been passed by this Court in CRLMC No. 597 of 2016. Both the FIRs being read together, it appears that subsequent FIR dated 30.12.2008 (Cuttack Vigilance P.S. Case No. 57 of 2008) after the lodging of the first FIR dated 17.11.2008 (Cuttack Vigilance P.S. Case No. 47 of 2008) is not thrust upon discovery of new facts. It has all the concern with the set of facts as pointed out in the first FIR, which was in respect of the developmental works under three sectors, i.e., 8, 10 and 11, as against one, i.e., sector 10 in so far as the subsequent FIR is concerned. It has all the concern with the set of facts as pointed out in the first FIR, which was in respect of the developmental works under three sectors, i.e., 8, 10 and 11, as against one, i.e., sector 10 in so far as the subsequent FIR is concerned. It is further seen that though there has been narration of the facts leading to commission of offence by the petitioners and the other, who have in the meantime been absolved, is backed by some other details but those are not such as having no linkage with the allegations made in the first FJR. Here the first FIR itself had disclosed an offence of criminal conspiracy in relation to illegal payment being made to the Contractor pertaining to all said works and that the Vigilance was called upon to unearth, which stood quashed reaching finality. In that view of the matter, the present FIR, the present FIR loses its legal foundation and consequentially, the investigation carried out in pursuance of the same. In that view of the matter, it is, found that said contention raised from the side of the petitioners has force and this Court is not in a position to accept the submission of the learned Standing Counsel Vigilance that the allegations arising from the facts as given in the subsequent FIR leading to registration of Cuttack Vigilance P.S. Case No. 57 of 2008 are different from the facts narrated in the first FIR leading to registration of Cuttack Vigilance P.S. Case No. 47 of 2008, which has been quashed along with the investigation made thereunder. 15. For all the aforesaid, the order dated 24.08.2015 passed by the learned Special Judge, Vigilance, Cuttack upon consideration of the materials collected pursuant to the investigation based upon the subsequent FIR dated 30.12.2008 giving rise to Cuttack Vigilance P.S. Case No. 57 of 2008, is held bad in law and liable to be set aside. In the result, the impugned order dated 24.08.2015, so far as these petitioners are concerned, is hereby set aside. The Criminal Revisions stand allowed.