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2021 DIGILAW 555 (ALL)

Kamal Daniel v. State of U. P.

2021-06-16

AJAI KUMAR SRIVASTAVA-I, ATTAU RAHMAN MASOODI

body2021
JUDGMENT : ATTAU RAHMAN MASOODI, J. 1. Heard Shri Siddharth Luthra, learned Senior Advocate assisted by Shri Raghvendra Pandey, Viksit Arora and Shri Nadeem Murtaza on behalf of the petitioners and Shri V.K. Shahi, learned AAG assisted by Shri S.P. Singh, learned Additional Government Advocate for the State. 2. This writ petition has fallen in the lap of this Court under peculiar circumstances. There is a folklore that a wrongful mind breeds evil and a rightful conduct fountains nothing but truth. Humanity is universally subjugated to the influence of evil and it is difficult to carve out an exception in the modern world of any popular civilized order that guarantees personal liberty ideally and enforces the human rights by adhering to the exemplary standards. The rule of law nevertheless must prevail to strengthen social and economic peace. 3. The criminal administration of justice under the Constitution of India hinges on Article 21 read with Article 20 and this is what the framers of our Constitution have fundamentally guaranteed to the citizens. The procedure prescribed under law is as fundamental under Article 21 as the right of personal liberty itself whereas Article 20(2) of the Constitution of India protects a citizen from the prosecution and punishment for the same offence more than once. 4. The present writ petition has challenged the legality of an FIR registered vide number 98 of 2021 the investigation whereof was transferred to SIT by opposite party no. 1 on the date of registration of FIR itself i.e. 4.3.2001. The SIT renumbered the case vide FIR number 4 of 2021 under Section 420, 467, 468, 471, 477-A IPC. The original number of the second FIR i.e. 98 of 2021 is mentioned in the corresponding record of the FIR of SIT i.e. FIR No. 4/2021 with all relevant particulars including the date of registration of the second FIR on 4.3.2021 at 3.52 hours. The presentation of the written information of recovery memo in the police station is mentioned at 3.51 hours whereas the date of occurrence is shown at 1.45 hours to 1.45 hours on 4.3.2021. 5. The presentation of the written information of recovery memo in the police station is mentioned at 3.51 hours whereas the date of occurrence is shown at 1.45 hours to 1.45 hours on 4.3.2021. 5. The FIR was registered against as many as sixteen persons but the owner of the manufacturing company for whose benefit the double exit of country made liquor on a single waybill (bilty)/gate pass was indulged into, despite being the main profiteer of the alleged occurrence mentioned in the recovery memo, was not named in the FIR and has not been arrested even otherwise. 6. The petitioners have challenged the FIR mainly on the ground that the same written information in respect of the alleged occurrence was already registered at 3.51 hours as FIR No. 97 of 2021 under Section 60 of the Excise Act, 1910 at the same police station on the same day, therefore, the registration and fresh investigation pursuant to the second FIR arising out of the same occurrence/information within a closest proximity of time for multiple offences under IPC was impermissible in the eye of law and hence the impugned FIR may be quashed alongwith the investigation held in pursuance thereof and the petitioners no. 2, 8 to 15 sent to judicial custody may be released on interim bail. 7. The facts of the case according to the petitioners, briefly stated, are that FIR No. 97 of 2021 under Section 60 of Excise Act, 1910, renumbered by SIT as FIR No. 3 of 2021 was already registered at the concerned police station containing entirely the same version as that of second FIR No. 98 of 2021 registered under Section 420, 467, 468, 471, 477-A IPC on 4.3.2021. The police authorities having registered the two FIRs within a margin of one minute proceeded to arrest the petitioners no. 8, 9, 10, 11, 13, 14 and 15 on the same day and on production before the competent court, they were taken into judicial custody under remand orders passed separately on 4.3.2021 in both the cases i.e. Case Crime No. 97 of 2021 under Section 60 of the U.P. Excise Act, 1910 and Case Crime No. 98 of 2021 under Section 420, 467, 468, 471, 477-A IPC and Section 66 IT Act. The petitioners no. 2 and 12 were likewise arrested thereafter and remanded to judicial custody and are presently in jail. The petitioners no. 2 and 12 were likewise arrested thereafter and remanded to judicial custody and are presently in jail. The investigating officer having held some investigation does not appear to have apprised the competent court of any technical difficulty about the two FIRs, as such, interlocutory remand orders were separately passed on 4.3.2021 and extended thereafter in both the cases. The record reveals that police report was filed on 1.5.2021 in case crime no. 3/2021 under Section 60(2) of the U.P. Excise Act, 1910 whereafter the remand was extended in the other case. The first case was posted for taking cognizance after reopening of the courts closed due to lockdown. 8. In the meantime, the petitioners no. 1, 3 and 4 were granted anticipatory bail, whereas petitioner no. 5 was granted interim stay of arrest in the first FIR. The petitioners no. 6 and 7 have not been arrested. The petitioners no. 8 to 15 though on interim bail in the first FIR, are in judicial custody pursuant to the remand order passed in the second FIR. To be precise, nine out of fifteen petitioners are in judicial custody whereas remaining six, as per the second supplementary affidavit filed by the petitioners on 27.5.2021, have not been arrested and this position is evident from Annexure No. SA-5 filed therewith. 9. It is an undisputed fact between the parties that a single written information by way of recovery memo presented by opposite party no. 3 (informant) before the police station on 4.3.2021 gave rise to the registration of two FIRs i.e. FIR No. 97 of 2021 under Section 60 of Excise Act, 1910 and the FIR No. 98 of 2021 under Section 420, 467, 468, 471, 477-A IPC. It is also an admitted position before this Court that the contents of the written information presented before the police station was one and the same yet the two FIRs for multiple offences arising out of the same occurrence were registered separately. The registration of second FIR inclusive of fresh investigation pursuant thereto, according to learned counsel for the petitioners, was impermissible in view of the law laid down by the apex court in the case of T.T. Antony vs. State of Kerala and Others, (2001) 6 SCC 181 . 10. The registration of second FIR inclusive of fresh investigation pursuant thereto, according to learned counsel for the petitioners, was impermissible in view of the law laid down by the apex court in the case of T.T. Antony vs. State of Kerala and Others, (2001) 6 SCC 181 . 10. Learned counsel for the petitioners has submitted that it is the first information registered under Section 154 Cr.P.C. according to which the investigation can go on and any investigation for the same occurrence based on a second FIR is fresh investigation hit by the mandate of law as propounded by the apex court in the judgment referred to above. Therefore, any proceedings in furtherance thereof inclusive of the remand orders passed by the competent court are void ab initio hence the petitioners who are languishing in jail on the strength of the remand orders passed in Case Crime No. 98 of 2021 renumbered as FIR No. 4 of 2021 under Section 420, 467, 468, 471, 477-A IPC and Section 66 IT Act are liable to be released on interim bail. 11. Per contra, the State has filed two short counter affidavits, one sworn on 25.5.2021 and the other on 28.5.2021. In the short counter affidavit filed on 25.5.2021, a specific plea of technical difficulty has been set out to the effect that the information presented by the informant while being uploaded for registration of the FIR did not accept Section 60 Excise Act alongwith the multiple offences under IPC and this is what has occasioned the registration of two FIRs. The exact version set out in the counter affidavit contained in paragraph 6 of the former short counter affidavit is extracted hereunder: “6. That in the present case, two FIRs had been registered due to technical problem which was faced by the police station Kotwali Dehat, District Saharanpur because the software of CCTNS for registration of FIR was not taking the excise sections invoked in Excise Act alongwith the Sections of IPC and, therefore in the compelling circumstances having no option two FIRs had been registered which are as under: (i) FIR No. 97 of 2021 under Section 60 of the Excise Act, Police Station Kotwali Dehat, District Saharanpur. (ii) FIR No. 98 of 2021 under Section 420, 467, 468, 471, 477-A IPC, Polce Station Kotwali Dehat, District Saharanpur.” 12. (ii) FIR No. 98 of 2021 under Section 420, 467, 468, 471, 477-A IPC, Polce Station Kotwali Dehat, District Saharanpur.” 12. Insofar as the consequential action of investigation inclusive of remand orders is concerned, it is submitted that the matter has now been considered by the State Government and on having realised the irregularity, it was decided that the second FIR shall henceforth be merged and further investigation shall proceed as a part and parcel of FIR No. 97 of 2021 renumbered by SIT as FIR No. 3 of 2021 for multiple offences. The investigation carried out in the subsequent FIR is, therefore, treated as further investigation for all purposes. 13. It is also submitted that the concerned court has also passed necessary order in this regard and the remand order henceforth shall be obtained in the earliest information i.e. F.I.R. No. 3/2021 by the SIT. 14. The version set out in the counter affidavit that the second FIR came to be registered on account of a technical difficulty has further been justified on the strength of the documents contained in Annexure SCA-1 to SCA-5 of the short counter affidavit filed on 25.5.2021. The first document i.e. Annexure No. SCA-1 filed alongwith the short counter affidavit is undated. This letter is stated to be issued under the signature of the In-charge of the concerned Police Station i.e. Kotwali Dehat, District Saharanpur addressed to Assistant Excise Commissioner, Meerut Zone, Meerut. The other documents i.e. SCA-2 to SCA-5 were issued on 25.5.2021 and have swiftly moved from one office to another in an unusual manner. The documents also became a part of short counter affidavit sworn on 25.5.2021 itself. 15. All these documents contained in Annexure SCA-1 to SCA-5, on a close scrutiny, clearly show that this exercise undertaken on 25.5.2021 was afterthought, unusual and simply to justify the action on the part of Additional Chief Secretary, Home, U.P. who had transferred the investigation by passing an order on 4.3.2021 wherein the details of both the FIRs transferred to SIT for investigation are mentioned. Interestingly the order dated 4.3.2021 transferring the investigation was passed on the same very date of lodging of the two FIRs arising out of the same occurrence. Interestingly the order dated 4.3.2021 transferring the investigation was passed on the same very date of lodging of the two FIRs arising out of the same occurrence. The competent authority who ought to have thrashed out the illegality, firstly failed to notice a serious lapse on the part of concerned police station and secondly there was absolutely no attempt on his part to streamline the process of investigation as per the mandate of law. Thirdly, the transfer of investigation on the same very day without disclosing any administrative reason securing fairness of investigation speaks of nothing but a deliberate omission of duty apparent on the face of record. Anything prior in point of time than the lodging of criminal case as noticed by Addl. Chief Secretary, Home, U.P. on 4.3.2021, was irrelevant and nothing impinging on the fairness of ongoing investigation has been spelt out that may have warranted the transfer of investigation. 16. To say the least and without impeding the investigation by SIT, it can be safely concluded that the documents i.e. Annexure SCA-1 to SCA-5 placed on record are clearly afterthought and designed to justify an ill intentioned order passed by the Addl. Chief Secretary, Home, U.P. on 4.3.2021. 17. This Court in the normal course would not view such a lapse on the part of the highest authority of the department so lightly but in absence of a contest on such an aspect, the Court in the discharge of its legal duty would strike a note of caution and it is expected that an officer positioned as Head of the Department must always act to serve the purpose of law. The majesty of law on sensitive matters like the case at hand could not be compromised. In case the offences of this description at the highest level of department are dealt with selectively, the fate of investigation is bound to suffer leaving a far reaching impact on the administration of criminal justice. The investigating agency, therefore, is cautioned to be fair and independent. 18. The Court would further expect that the administrative order issued on 26.4.2016 by the then DGP as regards merger of FIRs arising out of the same occurrence, may also be revisited and brought in consonance with law. 19. The investigating agency, therefore, is cautioned to be fair and independent. 18. The Court would further expect that the administrative order issued on 26.4.2016 by the then DGP as regards merger of FIRs arising out of the same occurrence, may also be revisited and brought in consonance with law. 19. Having heard learned counsel for the parties, the following issues being relevant in the present case deserve a consideration in the interest of justice: (1) As to whether two separate FIRs for multiple offences arising out of the same occurrence based on a single written information were rightly registered at the concerned police station and transferred thereafter as separate cases by the State for investigation by SIT. (2) As to whether the rectification of the irregularity admitted by the State can be condoned in the facts and circumstances of the case. (3) As to whether the investigation and the consequential action of remand resorted to in furtherance of FIR No. 98 of 2021 renumbered as FIR No. 4 of 2021 under Section 420, 467, 468, 471, 477-A IPC can be treated to be further investigation for all purposes of the case or the same is liable to be quashed in the present writ proceedings. 20. For the sake of convenience and brevity the question no. 1 and 2 are taken up together for consideration. 21. Sri Siddhartha Luthra, learned Senior Counsel would contend that the procedure prescribed under law once deviated by the State at the threshold would strongly attract the principle viz. once the foundation is not in consonance with law, the subsequent action in furtherance thereof would necessarily fall, therefore, not only that the registration of the impugned FIR No. 4/2021 is illegal in the eye of law but all the consequential proceedings in furtherance thereof to the extent of remand orders are liable to be set aside. 22. To substantiate the argument put forth, learned counsel for the petitioners has further cited the judgment reported in State of Punjab vs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 . Emphasis is laid on paragraphs 107 to 111. This Court would note that the principle of law laid down by the apex court in the case of T.T. Antony (supra) remains a good law and it cannot be said that a second FIR for one or multiple offences arising out of the same occurrence would lie. Emphasis is laid on paragraphs 107 to 111. This Court would note that the principle of law laid down by the apex court in the case of T.T. Antony (supra) remains a good law and it cannot be said that a second FIR for one or multiple offences arising out of the same occurrence would lie. This would be contrary to what has been held in paragraph 20 of the judgment in the case of T.T. Antony which for ready reference is reproduced hereunder: “From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156,157, 162, 169, 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus there can be no second F.I.R. 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 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.” 23. In the case at hand the distinguishing features as compared to the case of T.T. Antony are that the State in the present case has conceded the irregularity on its part whereas in the case law relied upon, there was a contest and the State went on to support the second F.I.R. arising out the same occurrence and the issue was thus decided as above. It is to be noted that the time gap between the two FIRs in he above judgment unlike the present case was significant which is why the resultant injury to the aggrieved accused was found justiciable by the apex court. 24. It is to be noted that the time gap between the two FIRs in he above judgment unlike the present case was significant which is why the resultant injury to the aggrieved accused was found justiciable by the apex court. 24. Moreover, the principle as emphasized and stated to be followed invariably by the courts of law on the strength of judgment in the case of State of Punjab vs. Davinder Pal Singh Bhullar (supra) is also distant and would not apply in the facts and circumstances of the present case. It is the own case of the petitioners that the earliest FIR alone is to be treated as the information within the meaning of Section 154 Cr.P.C. and it is equally admitted to the parties that the contents of the first FIR are identical to that of the second FIR. Therefore, there is no reason for this Court to assume the foundation of the present case anything other than the earliest FIR which admittedly stands. That being so, the foundation of the present case i.e. the first FIR giving wide powers to investigation does not fall, as such, the argument of foundational collapse has no legs to stand in the facts and circumstances of the present case. The discovery of any material connected to an information registered under Section 154 Cr.P.C. documentary or oral, is a part of investigation or further investigation. 25. It is for this reason that the State has proceeded to rectify the lapse on its part and the technical irregularity that had crept in was removed. The technical lapse has come to be pointed out at a nascent stage of investigation when the rule of double jeopardy neither stood attracted nor can it be termed to be a case of fresh investigation having offended any valuable rights. The petitioners who were subjected to simultaneous investigation would have faced the same consequence in the normal course but for the technical difficulty as explained. The petitioners have also not attributed any mala-fides in this regard. The investigating officer has already filed police report against some of the accused persons on 1.5.2021 in FIR No. 97/2021 renumbered by the SIT as FIR No. 3/2021 under Section 60(2) of U.P. Excise Act, 1910 and as against the rest, further investigation is stated to be pending. The petitioners have also not attributed any mala-fides in this regard. The investigating officer has already filed police report against some of the accused persons on 1.5.2021 in FIR No. 97/2021 renumbered by the SIT as FIR No. 3/2021 under Section 60(2) of U.P. Excise Act, 1910 and as against the rest, further investigation is stated to be pending. The State Government by order dated 27.5.2021 has merged the impugned second FIR with FIR No. 3/2021 for carrying out further investigation. The competent court has also passed an order continuing the two proceedings as one in Case Crime No. 3 of 2021 for multiple offences and an order to this effect stated to have been passed on 27.5.2021 is placed on record. 26. Looking to the strong variables mentioned above, which differentiate the present case from the case laws cited, it is thus doubtless that the process of investigation has been streamlined as prescribed under law. The petitioners are no more subjected to separate or double investigation in pursuance of the impugned FIR. 27. The discovery of any material, oral or documentary, after the registration of the earliest FIR under Section 154 Cr.P.C. forms a part of the investigation by virtue of Section 162 Cr.P.C. for filing the police report or supplementary report under Section 173(2) Cr.P.C. Thus, rectification at the nascent stage of investigation being exceptional in the present case deserves acceptance and is condoned for what has been recorded above. The arguments to the contrary fail and are rejected. 28. On the aspect of transfer of investigation, the observation already made would suffice and it is undesirable to reiterate the same. It is expected that further investigation in the matter by SIT shall be carried out in accordance with law and all the culprits involved in the commission of offences are booked for action with promptitude. 29. On question no. 3, learned Senior Counsel has next argued that even if the second FIR and the investigation pursuant thereto has been merged yet it would not rectify the process retrospectively. The remand orders passed by the trial court treating FIR No. 4/2021 as a separate case, nevertheless, are non est and liable to be set aside. The purpose of filing the present writ petition, at least, would not stand frustrated looking to the two interim orders passed by this Court on 25.5.2021 and 27.5.2021, it is argued. 30. The remand orders passed by the trial court treating FIR No. 4/2021 as a separate case, nevertheless, are non est and liable to be set aside. The purpose of filing the present writ petition, at least, would not stand frustrated looking to the two interim orders passed by this Court on 25.5.2021 and 27.5.2021, it is argued. 30. This Court may note that the authority of investigation in relation to the cognizable offences lies expansively in the domain of the investigating agency. This Court even does not enjoy supervisory control in this regard. A landmark judgment of the Privy Council in the case of Emperor vs. Khwaja Nazir Ahmad, AIR 1945 (32) PC 18, offers some guidance which has been followed throughout. The relevant passage of the judgment invariably quoted is extracted below: “In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court.” 31. It may be worthwhile to note that even the irregularities in the matter of investigation are saved by virtue of Section 156(2) or Section 460 (a) and (b) Cr.P.C. It is also well settled that the remand orders enabling investigation have no bearing on the trial. 32. This Court for the reasons recorded above has already opined that simultaneous investigation in the present case would not amount to fresh investigation. Interference in a matter where the earliest information prima facie makes out a cognizable offence coupled with the fact that a police report under Section 173 (2) Cr.P.C. has come to be filed against some of the petitioners does not leave any scope for us to interfere in the impugned FIR which no more exists as a separate case. The settled position of law laid down by the apex court in the case of State of Haryana vs. Bhajan Lal, 1992 Supp. (1) SCC 335, when tested in the gravamen of this case clearly discourages and resists interference in the exercise of writ jurisdiction. The settled position of law laid down by the apex court in the case of State of Haryana vs. Bhajan Lal, 1992 Supp. (1) SCC 335, when tested in the gravamen of this case clearly discourages and resists interference in the exercise of writ jurisdiction. Moreover, the interlocutory remand orders in absence of any specific challenge and having no bearing on trial are not amenable to the writ of certiorari, hence the third question propounded above is also decided in negative. 33. The petitioners in judicial custody have thus a remedy of bail under Section 439 Cr.P.C. whereas the petitioners who are not arrested are also at liberty to invoke the remedy of anticipatory bail under Section 438 Cr.P.C. 34. The writ petition is accordingly dismissed without prejudice to the remedy as above.