Farhana Khatoon, daughter of Nazir Ahmad v. State of Jharkhand through Vigilance, ACB
2020-07-06
ANIL KUMAR CHOUDHARY
body2020
DigiLaw.ai
JUDGMENT : Heard the parties through video conferencing. 2. This Cr.M.P. has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the F.I.R. as well as the entire criminal proceeding bearing Vigilance Dumka (A.C.B.) P.S. Case No.02 of 2017. 3. Mrs. Ritu Kumar, the learned counsel for the petitioner submits that the F.I.R. has been instituted against the petitioner for the assets which are disproportionate to her unknown source of income during the check period from 1996 to February, 2013 to the tune of 37.85% over and above her known source of income worth Rs. 17,71,989/-. It is further submitted that this F.I.R. has been lodged against the petitioner to harass her with oblique motive. It is next submitted that there is no fresh allegation against the petitioner and for self-same allegation the F.I.R. vide Godda P.S. Case No.191 of 2014 has been registered. Drawing attention of this Court towards the judgment of Hon’ble Supreme Court of India in the case of T.T. Antony Vs. State of Kerala & Others reported in (2001) 6 SCC 181 , learned counsel for the petitioner submits that for the self-same occurrence, the second F.I.R. is not maintainable and the FIR of this case, being the second F.I.R. for the self-same occurrence, hence, it is submitted that the said F.I.R. vide Dumka (A.C.B.) P.S. Case No.02 of 2017 be quashed. It is then submitted that the averments made in the F.I.R. are false and concocted. It is also submitted that no offence punishable under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988 is made out. It is next submitted that the evaluation of the building and other properties of the petitioner has been exaggerated only to make out a case against the petitioner and there is also error on the part of the Anti-Corruption Bureau in calculating the income of the petitioner. It is also submitted that in the departmental proceeding initiated against the petitioner it was alleged that the petitioner has misused her position to make several financial irregularity and in this manner she illegally amassed disproportionate assets but the said charges could not be established against the petitioner.
It is also submitted that in the departmental proceeding initiated against the petitioner it was alleged that the petitioner has misused her position to make several financial irregularity and in this manner she illegally amassed disproportionate assets but the said charges could not be established against the petitioner. It is next submitted that the Anti-Corruption Bureau has not considered the several incomes of the petitioner and the petitioner upon being dismissed from services in August, 2016 seized to be a public servant on 12th April, 2017 when the F.I.R. was lodged. Hence, no offence punishable under Section 13 of the Prevention of Corruption Act is made out against the petitioner. Hence, it is submitted that for these reasons also the said F.I.R. as well as the entire criminal proceeding be quashed. 4. Mr. T. N. Verma- the learned counsel for the Vigilance on the other hand vehemently opposes the prayer for quashing the F.I.R. as well as entire criminal proceeding. Drawing attention of this Court towards the counter-affidavit filed by the Anti-Corruption Bureau in this case, Mr. Verma submits that a team of Technical Examination Cell of Cabinet Secretariat and the Vigilance Department, Government of Jharkhand has evaluated the investment made in the construction of the house of the petitioner and submitted their report upon which the percentage of the disproportionate asset has been calculated to be 37.85% of her known source of income during the check period 1996 to 2013; during which period undisputedly the petitioner was a public servant. It is also submitted that the cause of action and nature of allegation made in F.I.R. of Dumka (A.C.B.) P.S. Case No.02 of 2017 are entirely different from the allegations made in Godda P.S. Case No.191 of 2014 as the Godda P.S. Case No.191 of 2014 has been registered alleging commission of criminal breach of trust in capacity of a public servant and for having committed dishonest misappropriation of property and the nature of evidence and therefore the manner of investigation in such misappropriation and criminal breach of trust cases are entirely different from disproportionate asset cases. It is then submitted that the ratio of T. T. Antony Vs. State of Kerala & Others (supra) is not attracted in this case. Hence, it is submitted that this petition being without any merit be dismissed. 5.
It is then submitted that the ratio of T. T. Antony Vs. State of Kerala & Others (supra) is not attracted in this case. Hence, it is submitted that this petition being without any merit be dismissed. 5. Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is crystal clear that this F.I.R. has been lodged only regarding the disproportionate assets earned by the petitioner during the check period 1996 to February, 2013. Of course, during this check period there is specific allegation against the petitioner to have misappropriated the Government money and having committed criminal breach of trust in capacity of a public servant, while being posted as District Education Superintendent -cum- District Program Officer, Godda. 6. It is a settled principle of law that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered, as has been held by the Hon’ble Supreme Court of India in the case of Anju Chaudhary V. State of U.P. and another in CRIMINAL APPEAL NO. 2039 OF 2012 (Arising out of SLP (Crl) No.9475 of 2008). In the case of M. Krishna v. State of Karnataka [ (1999) 3 SCC 247 ], the Hon’ble Supreme Court of India took the view that even where the charge was similar but for a different period, there was nothing in the Code to debar registration of the second FIR. In that case it was opined by the Hon’ble Court that as in that case the first FIR was registered for an offence under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act related to the period 1.8.1978 to 24.8.1989 and the investigation culminated into filing of a report which was accepted by the Court, the second FIR and subsequent proceedings related to a later period which was 1st August, 1978 to 25th July, 1995 under similar charges. It was held that there was no provision which debar the filing of a subsequent FIR. 7. In the case of Babubhai v. State of Gujarat and Ors.
It was held that there was no provision which debar the filing of a subsequent FIR. 7. In the case of Babubhai v. State of Gujarat and Ors. [ (2010) 12 SCC 254 ] the Hon’ble Supreme Court of India spelt out the distinction between two FIRs relating to the same incident and two FIRs relating to different incident or occurrences of the same incident and prescribed that in order to examine the impact of one or more FIRs the court concerned has to rationalize 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, are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. If the answer falls in the first category, the second FIR may be liable to be quashed. However, in case the contrary is proved, where the version of the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible. 8. Now coming to the facts of this case, the disproportionate assets amassed by the petitioner during the check period is certainly from the alleged misappropriation in one case for which Godda P.S. Case No.191 of 2014 has been registered. Cases of misappropriation and criminal breach of trust as alleged in this case against the petitioner and the allegation of earning disproportionate assets by the petitioner as alleged in this case upon rationalization of the facts of both the FIR appear to be distinct and are of separate nature and the date of occurrence of the two cases are also different. So, this Court is of the considered view that this F.I.R. is certainly not the second F.I.R. for the self-same allegation as made in the F.I.R. of Godda Town P.S. Case No. 191 of 2014. Accordingly, the principle of law as laid down in the case of T.T. Antony Vs. State of Kerala & Others (supra) is not applicable in this case. 9.
Accordingly, the principle of law as laid down in the case of T.T. Antony Vs. State of Kerala & Others (supra) is not applicable in this case. 9. So far as the contention of the petitioner regarding the false allegation being made in the F.I.R. or for that matter the contention regarding Anti-Corruption Bureau having exaggerated the assets of the petitioner are concerned the same is defence of the petitioner, which the petitioner can agitate at the appropriate stage of the case but certainly the same is not the ground to quash the F.I.R as well as the entire criminal proceeding at the threshold. 10. Accordingly, this petition being without any merit is dismissed.