Allahabad High Court
Ram Parvesh Yadav vs State Of ... on 7 October, 2021
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No. - 9
Case :- MISC. BENCH No. - 23080 of 2021
Petitioner :- Ram Parvesh Yadav
Respondent :- State Of U.P.Thru.Secy.Home,Lucknow & Ors.
Counsel for Petitioner :- Kaustubh Singh,Illegible,Kamal Kishore Sharma
Counsel for Respondent :- G.A.
Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Saroj Yadav,J.
Ramesh Sinha, J. (Oral)
(1) In this petition, the petitioner, Ram Pravesh Yadav, is seeking a writ of mandamus directing the respondents to consolidate all First Information Reports registered against him for the purposes of investigation, enquiry and trial. The details of cases pending against the writ petitioner are as under :-
Sr. No
FIR & Date of Registration of FIR
Place of Registration of FIR
Section
Date of Offence
Name of Complainant
Accused
FIR No. 0013 of 2020
27.10.2020
P.S. S.I.T.
District Lucknow
420, 467, 468, 471, 120-B I.P.C.
From 01.04.12 to
31.03.17
Inspector
Sri Rajul Garg
(1) Hira Lal Yadav
(2) Ravi Kant Singh
(3) Ramjatan Yadav
(4) Rakesh Kumar Mishra
(5) Santosh Kumar Srivastava
(6) Ram Pravesh Yadav
(7) Other officer and employees of UP Co-operative Institution Service Mandal Lucknow
(8) Other officer and employees of the Managing Committee and Bank of U.P. Co-operative Bank
02.
0021 of 2021
21.05.2021
P.S. S.I.T.
District Lucknow
420, 467, 468, 471, 201, 204, 120-B I.P.C.
From 01.04.2012 to 31.03.2017
Inspector Kunwar Brahm Prakash Singh
(1) Ram Jatan Yadav
(2) Rakesh Kumar Mishra
(3) Santosh Kumar Srivastava
(4) Ram Pravesh Yadav
(5) Other officer and employees of UP Co-operative Institution Service Mandal Lucknow
022 of 2021
21.05.2021
P.S. S.I.T.
District Lucknow
420, 467, 468, 471, 201, 204,
120-B
I.P.C.
From 01.04.2012 to 31.03.2017
Inspector Kunwar Braham Prakash Singh
(1) Ram Jatan Yadav
(2) Rakesh Kumar Mishra
(3) Santosh Kumar Srivastava
(4) Ram Pravesh Yadav
(5) Narad Yadav
(6) Sudish Kumar
(7) the then officer of the Managing Committee of U.P. Co-operative Village Development Bank Ltd. Lucknow.
(8) the officer and employees of the U.P. Co-operative Village Development Bank Ltd. Lucknow and U.P. Co-operative Institution Service Board, Lucknow.
04.
0023 of 2021
21.05.2021
P.S. S.I.T.
District Lucknow
420, 467, 468, 471, 201, 204, 120-B
I.P.C.
From 01.1.2015 to 31.12.2016
Inspector Kunwar Braham Prakash Singh
(1) Ram Jatan Yadav
(2) Rakesh Kumar Mishra
(3) Santosh Kumar Srivastava
(4) Ram Pravesh Yadav
(5) the officer and employees of the U.P. Co-operative Institution Service Board, Lucknow.
05.
0024 of 2021
21.05.2021
P.S. S.I.T.
District
Lucknow
420, 467, 468, 471, 201, 204, 120-B
I.P.C.
From 01.04.2012 to 31.03.2017
Inspector Kunwar Braham Prakash Singh
(1) Ram Jatan Yadav
(2) Rakesh Kumar Mishra
(3) Santosh Kumar Srivastava
(4) Ram Pravesh Yadav
(5) the officer and employees of the U.P. Co-operative Institution Service Board, Lucknow.
0025 of 2021
21.05.2021
P.S. S.I.T.
District Lucknow
420, 467, 468, 471, 201, 204, 120-B
I.P.C.
From 01.01.2016 to 31.12.2017
Inspector Kunwar Braham Prakash Singh
(1) Ram Jatan Yadav
(2) Rakesh Kumar Mishra
(3) Santosh Kumar Srivastava
(4) Ram Pravesh Yadav
(5) the officer and employees of the U.P. Co-operative Institution Service Board, Lucknow.
(2) In addition, the petitioner is also seeking a writ of Mandamus directing the respondents that if the petitioner is arrested in connection with any criminal case, arising out of the First Information Reports, involved in the present cases, the arresting officer shall release him on bail on executing a Bail Bond to the satisfaction of the Investigating Officer.
(3) It transpires from the record that vide Government Order dated 27.04.2018 (Annexure No.7), the Secretary (Home), Government of U.P., Lucknow, had entrusted the enquiry to the Special Investigating Team (S.I.T.) in respect of the recruitment made between 01.04.2012 to 31.03.2017 in Co-operative Department and its subordinate institutions. In pursuance thereof, the Secretary, State of U.P., Lucknow, vide order dated 20.06.2018, limited the scope of enquiry in relation to the recruitment made between 01.04.2012 to 31.03.2017 through U.P. Co-operative Institutions Service Mandal and issued direction to S.I.T. accordingly. The S.I.T., after due enquiry, found that the officers and employees of the U.P. Co-operative Bank and its Managing Committee were involved in criminal conspiracy by changing the compulsory educational qualification for different posts contrary to U.P. Co-operative Societies Employees' Service Regulations, 1975. In these backgrounds, aforesaid F.I.Rs. have been lodged against the accused persons including the writ petitioner.
(4) Heard Mr. Kamal Kishore Sharma, learned Counsel for the petitioner, Mr. D.S. Rana, learned Additional Government Advocate for the State and perused the material brought on record.
(5) The contention of the learned counsel for the petitioner is that all the aforesaid six First Information Reports are based on the same cause of action arising out of the order dated 27.04.2018, which was issued by political vendetta by the present Government. He argued that in order to ensure fair administration of criminal justice and further to ensure that criminal process does not assume the character vexatious exercise by the institution of miserable First Information Report, founded on the same cause of action, all the First Information Reports be consolidated. He argued that the Scheme of the Code of Criminal Procedure is that an Officer Incharge of the Police Station has to commence an investigation as provided under Section 156/157 Cr.P.C. on the basis of the entry of the First Information Report. On completion of the investigation and on the basis of the evidence collected by the Investigating Officer, he has to form an opinion under Section 169/170 Cr.P.C. as the case may be and forward his report to the concerned Magistrate under Section 173 (2) Cr.P.C. He further argued that even after filing of such a report, if the Investigating Officer comes across further investigation or material, he need not register a fresh First Information Report, because, he is empowered to make further investigation, normally, with the leave of the Court and where during further investigation, he collects further evidence, orally or documentary, he is obliged to forward the same with one or further reports and this is an import of sub-Section (8) of Section 173 Cr.P.C.
(6) It is also contended by the learned Counsel for the petitioner that the right of fair investigation, arising out of the registration of an F.I.R., is a fundamental right of a person or accused, guaranteed and enshrined under Articles 19 and 21 of the Constitution of India. He submits that the case of the present writ petitioner is similar and identical to that of the case of Arnab Ranjan Goswami Vs. Union of India and others : (2020) 14 SCC 51, wherein the Apex Court, in the interest of fair administration of criminal justice, has drawn up a balance between governing principles set-forth therein and on the basis of the same, interim reliefs were granted in favour of Arnab Ranjan Goswami, Editor-in-Chief of the Republic T.V., hence the petitioner is entitled to be granted similar relief as has been granted to Arnab Ranjan Goswami (supra) by the Apex Court on the ground of parity.
(7) Per contra, learned Standing Counsel has submitted that separate FIRs have been registered against the writ petitioner and other co-accused persons on different allegations and further the witnesses in each case are different, therefore, the prayer of the petitioner for consolidating all six F.I.Rs. registered against the petitioner and other co-accused persons, is not sustainable. He argued that the case of the writ petitioner is distinguishable with Arnab Ranjan Goswami (supra).
(8) Having heard rival submissions of the learned Counsel for the parties and going through the record, we deem it proper to examine the law relating to the clubbing or consolidation of the FIRs. Section 154 of the Cr.P.C. provides for registration of the FIR on the basis of the information relating to the commission of cognizable offences. Section 155 of Cr.P.C. provides for recording of such information in respect of non-cognizable offences. Section 169 and 170 of the Cr.P.C. provide for the course of action on completion of investigation i.e. to release the accused when evidence is deficient or to send the case to Magistrate when evidence is sufficient. Section 173 of the Cr.P.C. requires the police officer to submit the final report before the Magistrate on completion of investigation containing requisite details. Sub-section (8) of Section 173 permits further investigation after submission of report to the Magistrate. Section 220 of the Cr.P.C. deals with trial for more than one offences and provides that if in one series of act so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Similarly, Section 219 of the Cr.P.C. provides that three offences of the same crime within one year may be charged together.
(9) Considering the above statutory provisions by various judicial pronouncements, it is settled that there can be no straightjacket formula for consolidating or clubbing the FIR and Courts are required to examine the facts of each case. A second FIR in respect of same offence or different offences committed in the course of same transaction is not permissible. The second FIR on the basis of receipt of information in respect of same cognizable offence or the same occurrence or incident giving rise one or more cognizable offences is not permissible. It is also settled that the Courts are required to draw a balance between the fundamental rights of the citizens under Article 19 & 21 of the Constitution and expansive power of the police to investigate a cognizable offence. In a given case, second or successive FIR for same or connected cognizable offence alleged to have been committed in the course of same transaction in respect of which earlier FIR is already registered, may furnish a ground for interference by the Court but where the FIRs are based upon the separate incident or similar or different offences or the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the earlier FIR then the second FIR can be registered. Where two incidents took place at different point of time or involve different person or there is no commonality and the purpose thereof is different and the circumstances are also different then there can be more than one FIR. The Court is required to see the circumstances of a given case indicating proximity of time, unity or proximity of case, continuity of action, commonality of purpose of the crime to ascertain if more than one FIR can be allowed to stand.
(10) The Apex Court in the case of T.T. Antony Vs. State of Kerala and others : (2001) 6 SCC 181, after taking note of the provisions of Section 154 to 157, 162, 169, 170 and 173 of the Cr.P.C. and considering the issue of striking a balance between citizen's right under Article 19 and 21 of the Constitution and expansive power of police to make investigation, has held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. It has further been held that after registration of the FIR under Section 154 of the Cr.P.C. in respect of commission of the cognizable offence, all such subsequent information is covered by Section 162 of the Cr.P.C. and that Officer Incharge of the 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 provided in Section 173 of Cr.P.C.
(11) The Apex Court in the case of Upkar Singh vs. Ved Prakash & Others : (2004) 13 SCC 292 has clarified and explained the judgments rendered in the case of T.T. Antony (supra) and has held that the second complaint in regard to the same incident filed as a counter complaint is not prohibited under the Cr.P.C. It has been held that in T.T. Antony's case, the legal right of an aggrieved person to file counter complaint has not been considered.
(12) In Rameshchandra Nandlal Parikh vs. State of Gujarat & Another : (2006) 1 SCC 732, the Apex Court has held that if subsequent complaints were not in relation to same offence or occurrence or did not pertain to same party as alleged in the first report then on that ground the subsequent complaint need not be quashed.
(13) In Nirmal Singh Kahlon vs. State of Punjab & others : (2009) 1 SCC 441, where the C.B.I. registered the second FIR considering the nature and extent of crime, the Apex Court has held that the C.B.I. detecting larger conspiracy not detected by local police is not precluded from lodging the second FIR.
(14) In the case of Babubhai vs. State of Gujarat & others : (2010) 12 SCC 254, the Apex Court has further clarified that if two FIRs pertains to two different incidents/crimes, second FIR is permissible. Applying the test of sameness, it has been held by the Apex Court that subsequent to registration of an FIR any further complaint in connection with the same or connected offence relating to the incident or incidents which are part of the same transaction is not permissible. Taking note of the earlier pronouncements on the issue, it has been held by the Apex Court that:
"20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of a cognizable offence recorded by the Officer In-Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police Officer In- charge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C.
21. In such a case the court has to examine the facts and cir- cumstances 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 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 counter claim, investigation on both the FIRs has to be conducted."
(15) In the case of Awadesh Kumar Jha @ Akhilesh Kumar Jha vs. State of Bihar : (2016) 3 SCC 8, the Apex Court has held that if the substance of allegation in the second FIR is different from the first FIR and the second FIR relates to different transaction then the second FIR can be maintained.
(16) In the case of Chirag M. Pathak & others vs. Dollyben Kantilal Patel & others (2018) 1 SCC 330, wherein six FIRs were registered in different police stations and the ground was raised that all the FIRs are based on identical facts, the Apex Court held that the six cooperative societies were different, their members were different, their area of operation was different, the lands which were sold/transferred were also different in different area, the party to whom the land was sold was different. The totality of factual allegations constitutes commission of several offences in relation to every cooperative society, hence, the FIRs were not overlapping and no case for quashing the FIR was made out.
(17) In the case of State of Jharkhand vs. Lalu Prasad Yadav : (2017) 8 SCC 1, the defalcations were from different treasury for different financial year, amount involved was different, fake vouchers/ allotment letters/supply orders were prepared with the help of different sets of accused persons, the Apex Court has held that the separate trials are required to be conducted. It has further been clarified that 'same offence' is different from 'same kind of offence' and has held that if 'same kind of offence' was committed multiple times then each time it constitutes a separate offence and therefore accused can be tried in different trials. It has also been clarified that even if the modus operandi was same that would not make it a single offence when offences were different. The Apex Court in the said case has held as under:
"42. We are unable to accept the submissions raised by learned senior counsel. Though there was one general charge of conspiracy, which was allied in nature, the charge was qualified with the substantive charge of defalcation of a particular sum from a particular treasury in particular time period. The charge has to be taken in substance for the purpose of defalcation from a particular treasury in a particular financial year exceeding the allocation made for the purpose of animal husbandry on the basis of fake vouchers, fake supply orders etc. The sanctions made in Budget were separate for each and every year. This Court has already dealt with this matter when the prayers for amalgamation and joint trial had been made and in view of the position of law and various provisions discussed above, we are of the opinion that separate trials which are being made are in accordance with provisions of law otherwise it would have prejudiced the accused persons considering the different defalcations from different treasuries at different times with different documents. Whatever could be combined has already been done. Each defalcation would constitute an independent offence. Thus, by no stretch, it can be held to be in violation of Article 20(2) of the Constitution or Section 300 Cr.P.C. Separate trials in such cases is the very intendment of law. There is no room to raise such a grievance. Though evidence of general conspiracy has been adduced in cases which have been concluded, it may be common to all the cases but at the same time offences are different at different places, by different accused persons. As and when a separate offence is committed, it becomes punishable and the substantive charge which has to be taken is that of the offence under the P.C. Act etc. There was conspiracy hatched which was continuing one and has resulted into various offences. It was joined from time to time by different accused persons, so whenever an offence is committed in continuation of the conspiracy, it would be punishable separately for different periods as envisaged in section 212(2), obviously, there have to be separate trials. Thus it cannot be said to be a case of double jeopardy at all. It cannot be said that for the same offence the accused persons are being tried again.
50. The modus operandi being the same would not make it a single offence when the offences are separate. Commission of offence pursuant to a conspiracy has to be punished. If conspiracy is furthered into several distinct offences there have to be sepa- rate trials. There may be a situation where in furtherance of gen- eral conspiracy, offences take place in various parts of India and several persons are killed at different times. Each trial has to be separately held and the accused to be punished separately for the offence committed in furtherance of conspiracy. In case there is only one trial for such conspiracy for separate offences, it would enable the accused person to go scotfree and commit number of offences which is not the intendment of law. The concept is of 'same offence' under Article 20(2) and section 300 Cr.PC. In case distinct offences are being committed there has to be inde- pendent trial for each of such offence based on such conspiracy and in the case of misappropriation as statutorily mandated, there should not be joinder of charges in one trial for more than one year except as provided in section 219. One general conspiracy from 1988 to 1996 has led to various offences as such there have to be different trials for each of such offence based upon conspiracy in which different persons have participated at different times at different places for completion of the offence. What- ever could be combined has already been done. Thus we find no merit in the submissions made by learned senior counsel appearing on behalf of accused persons."
(18) Much emphasis has been laid down by the learned Counsel for the petitioner upon the case of Arnab Ranjan Goswami vs. Union of India and others (supra) but that was a case where multiple FIRs were registered arising out of the same cause of action in different States. Hence, it was held that filing of such multiple FIRs causes intervention into petitioner's right as a citizen to fair treatment under Article 14 and freedom to conduct independent portryal of views under Article 19 (1)(a) of the Constitution of India, but that is not so in the present case because in the present case involvement of different category of person(s) holding the post in U.P. Co-operative Bank in respect of irregularity in recruitment of different posts has given separate cause of action. Moreso, it is relevant to add here that co-accused Hira Lal Yadav has approached this Court by filing Misc. Bench No. - 13252 of 2021 : Hira Lal Yadav Vs. State of U.P. and others, seeking to quash Case Crime No. 0013 of 2020, under Sections 120-B, 471, 468, 467 and 420 I.P.C., Police Station S.I.T., Lucknow. This Court, after hearing learned Counsel for the parties, dismissed the aforesaid writ petition by means of order dated 30.06.2021. The writ petitioner-Ram Pravesh Yadav has also approached this Court by filing writ petition No. 26021 of 2020 (M/B), challenging Case Crime No. 0013 of 2020, under Sections 120-B, 471, 468, 467 and 420 I.P.C., Police Station S.I.T., Lucknow, which was dismissed by a Co-ordinate Bench of this Court vide order dated 05.01.2021.
(19) It is pertinent to mention here that had the separate FIRs been registered in respect of same category then it could be said to be a case of multiple FIRs for same offence but that is not so in the present case as the different FIRs are for different category of employees and for different occasions and there is no repetition of FIR for same occasion. Thus, it is settled that subsequent FIRs for different offences committed in the course of same transaction or offences arising as a consequence of prior offence is not permissible but the second complaint in regard to the same incident filed as a counter complaint as also the second FIR for the same nature of offence against same accused persons lodged by different persons or containing the different allegations is permissible.
(20) In the instant case, (1) Case Crime No. 0013 of 2020 is relating to irregularity in recruitment of thirty different posts in U.P. Co-operative Bank Ltd.; (2) Case Crime No. 0021 of 2021 is in respect irregularity in recruitment of the post of Deputy Manager, Manager, Cashier in the U.P. Co-operative Federation, Lucknow; (3) Crime No. 022 of 2021 is relating to irregularity in recruitment of Field Officers and Assistant Branch Accountant in the U.P. Gram Vikas Bank Ltd.; (4) Crime No. 0023 of 2021 is relating to irregularity in recruitment of 313 posts of Co-operative Supervisor in Uttar Pradesh Co-operative Union through the recruitment agency Uttar Pradesh Co-operative Institutional Service Mandal; (5) Crime No. 0024 of 2021 is relating to irregularity in recruitment of Senior Branch Manager, Junior Branch Manager and Programmer-cum-Data Entry Operator and others; (6) Crime No. 0025 of 2021 is relating to irregularity in recruitment of 16 posts of Assistant Engineer (Civil) and two posts of Deputy Manager (Accounts). This shows that each F.I.R. has been registered on account of irregularities in recruitment of different posts.
(21) It is relevant to add here that nothing has been pointed out to refute the submission of counsel for the State that even the witnesses in each of case are different. Though different FIRs reveal that the same kind of offence has been registered against the petitioner but they are for the irregularities in the recruitment of different posts. The subsequent FIRs do not arise as a consequence of allegations made in the first FIR. Hence, the test of 'sameness' and the test of 'consequence' is not satisfied in the present case.
(22) Even otherwise, it is also noticed that the first FIR i.e. Crime No.0013/2020 was registered against the petitioner on 27.10.2020 and other five F.I.Rs i.e. 0021 of 2021, 022 of 2021, 0023 of 2021, 0024 of 2021 and 0025 of 2021, were registered against the petitioner on 21.05.2021. The investigation had continued but at no point of time the petitioner had raised any objection or had taken any action for clubbing of these FIRs. According to the Counsel for the State, the investigation of the aforesaid F.I.Rs. is at the stage of completion and the appropriate police report will be filed in shortwhile. The petitioner has approached at a belated stage by filing the present petition on 05.10.2021, therefore, at this stage no such relief can be granted. Now, the petitioner will have remedy to make a prayer before the Trial Court for one trial under Section 220 of the Cr.P.C., if the petitioner establishes a case for the same.
(23) Considering the aforesaid, we are not inclined to interfere in the instant writ petition.
(24) The writ petition is, accordingly, dismissed.
(25) Costs easy.
(Saroj Yadav, J.) (Ramesh Sinha, J.)
Order Date :- 7.10.2021
Ajit/-
